committee of the Baptist Church executed and delivered a conveyance thereof to him. Section 171 of the new charter of Baltimore city (Laws 1898, c. 123) provides that "the valuation of the property subject to taxation in the city of Baltimore, as it shall appear upon the assessment books of the appeal tax court on the first day of October in each and every year, shall be final and conclusive, and constitute the basis upon which taxes for the next ensuing fiscal year shall be assessed and levied: provided, that the foregoing provision shall not apply to property in the city liable to taxation, and which may have escaped, or which may have been omitted, in the regular course of valuation, but such property shall be valued and assessed, and the owner or owners thereof charged with all back or current taxes, justly due thereon, whenever the same may be discovered and placed upon the assessment books." The same section further provides that, as soon as practicable after the 1st day of October in each year, a statement shall be rendered by said court to the city collector and to the board of estimates, showing the valuation and assessment of all the property subject to taxation in said city, as it shall appear upon the assessment books of said court on said 1st day of October, which statement shall constitute the taxable basis for the next ensuing fiscal year, and, after the levy of taxes, shall be designated as the tax roll for said year. In the course of the testimony taken in the Baltimore city court, it was shown that the property ceased to be used for church purposes after November 18, 1901, and that Mr. Jenkins purchased it with the view to the erection of a store thereon; but we do not think that its abandonment as a house of public worship, or the purchaser's intention as to its future use, are material for our consideration, under the plain and imperative provisions of the city charter to which we have referred, and which we regard as conclusive of the correctness of the order of the learned judge below. The purpose of these provisions, as was said in Hopkins v. Van Wyck, 80 Md. 15, 30 Atl. 556, in considering analogous provisions in the City Code of 1892, is "to designate some definite period as the point of time in each year when the valuation or appraisement fixed upon the property actually assessed and charged upon the books to each individual would be conclusively ascertained, and made binding both upon the city and the taxpayer alike, and to fix for a current year a final and conclusive relation upon such property of each taxpayer as is on March 1st [now October first] actually entered upon the assessment books, and not to exempt property that is not, but ought rightfully to be, there." Here, on October 1, 1901, the property in question was not, and could not rightfully have been, upon the assessment books, either as the property of the committee of the Baptist Church or

*

*

of the appellee,-not of the appellee, because he did not become the owner until November 16th, and not of the committee of the Baptist Church, because, though it then belonged to that committee, it was then exempt from taxation, and had no legal existence for the purposes of taxation. It did not become taxable until November 16th, and could then with no more propriety be placed upon the assessment books and be added to the taxable basis for 1902 than a building or structure whose foundations were laid after October 1st, no matter how speedily completed. No property, other than corporate property not subject to taxation on October 1st in each year, can enter into the taxable basis for the ensuing fiscal year; though it become subject to taxation on the next day. The point of time and the rule of law which control are alike arbitrary, and necessarily so, but are none the less final and conclusive, without authority and without argument. The power given in the proviso of section 171 to assess after October 1st "property escaped or omitted, in the regular course of valuation," is confined to property which was the subject of taxation on October 1st; or, in the language of Hopkins v. Van Wyck, supra, "which was not, but ought rightfully" to have been, upon the assessment books as of October 1st. None other could then have been legally assessed "in the regular course of valuation," and hence could not be embraced in property "escaped" or "omitted." In William Skinner & Sons Shipbuilding & Dry Dock Co. v. Mayor, etc., of City of Baltimore (decided at the last term) 53 Atl. 416, the dry dock was held to be so far a completed structure on October 1st as to be then the subject of taxation; and not being exempt from taxation, as church property is, it was held to have been rightfully assessed at a later date as omitted property, under the proviso mentioned. If any authority could be deemed necessary for our views, it may be found in County of Martin v. Drake, 40 Minn. 137, 41 N. W. 942; King v. City of Madison, 17 Ind. 48.

Judgment affirmed, with costs above and below.

DECEDENT'S REALTY-LIABILITY FOR DEBTS -JURISDICTION OF COURTS.

1. A resident debtor died seised of land in Ohio, which was claimed by one of her children under a mortgage from the debtor. The other children disputed this claim, and a compromise was effected, whereby the land was sold on foreclosure, purchased by trustees, and subsequently conveyed to the parties in the proportion of seven-twelfths to the mortgagee and five-twelfths to the other heirs. Held, that as Code, art. 16, § 188, authorizing the sale of a decedent's realty to pay his debts, can have

no extraterritorial effect, and as the common law, which must be presumed to be in force in Ohio, does not make a decedent's land liable for his debts, a local court was without jurisdiction to decree a sale of the five-twelfths interest of the heirs to satisfy decedent's debts. Appeal from circuit court of Baltimore city; George M. Sharp, Judge.

Suit by Seskind Katz and another, as executors of Daniel Katz, against George L. Seldner and others. From a decree for plaintiffs, defendants appeal. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. John Watson, Jr., for appellants. John P. Poe & Sons, for appellees.

MCSHERRY, C. J. The controlling question in the pending case is this: Had circuit court No. 2 of Baltimore city jurisdiction to pass the decree against which the appeal now before us was taken? The facts bearing upon that question and disclosed by the record are as follows: Eva Seldner owed Daniel Katz $17,800, evidenced by promissory notes. Eva Seldner died, leaving a last will and testament. Her personal estate was insufficient to pay her debts. At the time of her death she owned real estate in Maryland and in the state of Ohio. A creditors' bill was filed by Daniel Katz in the circuit court of Baltimore city to subject her Maryland real estate to the payment of her debts, and to vacate and set aside, as fraudulent, a certain mortgage to her son Jonas J. Seldner on her Ohio lands; and ultimately a decree was passed, directing a sale of the real estate situated in Maryland. A sale was made, and the proceeds were applied to the part payment of the debt due to Katz. So much of the bill and the prayer for relief as related to the mortgage on the Ohio land was dismissed by the plaintiff Katz before final decree, because and in pursuance of an agreement between Katz and Jonas Seldner to the effect that if Katz would abandon his assault upon the validity of the mortgage, Jonas Seldner would not seek payment of his debt secured by the Ohio mortgage out of the proceeds of the sale of the Maryland lands until Katz had been paid his claim in full. After those proceeds were exhausted, there still remained due to Katz a balance of some $4,300. The Ohio land was subject, as already stated, to a mortgage in favor of Jonas J. Seldner. The debt secured by that mortgage was stated to be $12,380, which had grown by the accumulation of interest to about $23,000 at the time the pending proceedings were inaugurated. The validity of that mortgage was disputed by other children of Eva Seldner, and steps were taken in Ohio to invalidate it. Before, however, that litigation reached a hearing, a compromise was effected, whereby it was agreed that a judgment in favor of Jonas J. Seldner should be entered up for $23,000,

and that five-twelfths of the judgment should be assigned to the three appellants and to two other children of Eva Seldner, who, though made parties to the pending cause, were not served with process. It was further stipulated in the agreement of compromise that the Ohio land should be sold under the judgment, and that, if it did not bring sufficient money to pay the amount of the judgment, it should be bought in and held by two trustees for the use of Jonas J. Seldner and the five other parties to the compromise, in the proportion to which they were entitled to the proceeds of the judgment. A sale was had, and the property was bought in by the trustees for $12,000, and later on the trustees conveyed the land to Jonas J. Seldner, the three appellants, and the two other parties to the compromise, to be held in the proportion of seven-twelfths by Jonas and one-twelfth by each of the other five. Daniel Katz having died, his executors filed the bill of complaint now before us against George L. Seldner, Charles S. Seldner, Rosella Rosenburg, Rebecca S. Rayner, and Abbie L. Fridenburg, children of Eva Seldnerthey being the grantees of a five-twelfths undivided interest in the Ohio land; and the bill prayed that the value of the real estate in Ohio so undertaken to be divided amongst the defendants after the settlement of the alleged mortgage claim of Jonas Seldner might be ascertained, and that a decree might be passed against the several defendants, requiring them to pay to the executors of Katz such sum, not exceeding the value of their interests in the Ohio land, as shall be necessary to satisfy the balance owing to the estate of Daniel Katz on the indebtedness due by Eva Seldner. Because of the agreement heretofore alluded to, between Daniel Katz and Jonas Seldner, in fulfillment of which the creditors' bill was dismissed in so far forth as it assailed the validity of Jonas Seldner's mortgage, Jonas Seldner's interest in the Ohio lands was not pursued or sought to be affected by the proceedings in this case. After answers had been filed by three of the defendants, process not having been served on the other two, and after evidence had been taken, a decree was finally entered, wherein, amongst other things, it was adjudged: "It is therefore this 18th day of March, 1902, by the circuit court No. 2 of Baltimore city, adjudged, ordered, and decreed that unless the defendants George L. Seldner, Rosella Rosenburg, and Rebecca S. Rayner, three of the defendants in this cause, upon whom process has been served, and who have appeared to this cause and answered the bill, shall on or before the 1st day of May, 1902, pay into this court, to be paid to the plaintiff, the said balance of four thousand three hundred and sixteen dollars and fifty-three cents, with interest thereon from October 25, 1898, they, the said George L. Seldner, Rebecca S. Rayner, and Rosella Rosenburg, shall sell at public auction in the

county seat of Columbiana county, on or before the 1st day of June, 1902, their threefifths interest in the said property in Columbiana county, Ohio, in order to discharge the claim of the plaintiffs for the said unsatisfied balance of forty-three hundred and sixteen dollars and fifty-three cents, with interest thereon from October 25, 1898; and the manner of the sale shall be as follows: They shall give at least three weeks' notice, by advertisement inserted in such daily newspaper published in the city of Baltimore, and such daily or weekly paper published in the county seat of Columbiana county, Ohio, as they shall think proper, of the time, place, manner, and terms of sale, which shall be for cash; and, as soon as may be convenient after such sale, they shall return to this court a full and particular account of the proceedings relative to such sale, with an annexed affidavit of the truth thereof, and of the fairness of such sale, and obtain the court's ratification of the sale, and on the payment of the whole purchase money, and not before, they shall, by good and sufficient deed, to be executed, acknowledged, recorded, according to law, convey to the purchaser or purchasers, his, her, or their heirs, the property and estate to him, her, or them sold, free, clear, and discharged from all claims of the parties complainant and defendants, and those claiming by, from, or under them, or either of them, and they shall bring into this court the money arising from said sale, to be distributed under the direction of this court." From that decree, this appeal was taken.

In the answer of each of the defendants, want of jurisdiction in circuit court No. 2 to grant the relief prayed for was distinctly averred and expressly relied on. It is not pretended that any of the appellants are indebted to the estate of Daniel Katz. The money sought to be recovered from them is money due by Eva Seldner's estate on promissory notes executed by her in her lifetime. But the effort is to make the appellants either personally liable for a debt due by their mother, or else through them to subject land lying in the state of Ohio to the operation and effect of a decree passed by a Maryland court. If there had been no mortgage held by Jonas Seldner on the Ohio land, and if there had been no compromise of the controversy over the mortgage, ånd if the Ohio land had passed, either by descent or by the will of Eva Seldner, to the appellants, it is perfectly obvious that creditors of Eva Seldner could not have filed a bill of complaint in this state against the heirs at law or the devisees for a sale of the Ohio lands to pay the decedent's debts. And this is so because such a proceeding is in rem. Tongue v. Morton, 6 Har. & J. 21. And when the thing to be affected by a proceeding in rem lies beyond the territory over which the tribunal appealed to has jurisdiction, the court is absolutely without power to act. At

the common law a simple-contract creditor could not resort to the real estate of a deceased debtor to secure payment of the debt. Van Bibber v. Reese, 71 Md. 611, 18 Atl. 892, 6 L. R. A. 332. The right to follow such real estate, and to have it sold for the discharge of debts, is wholly of statutory origin. Under the Code (article 16, § 188, which is taken from section 5, c. 72, of the Acts of 1785), it is provided that "where any person dies, leaving any real estate in possession, remainder or reversion, and not leaving personal estate sufficient to pay his debts and costs of administration, the court, on any suit instituted by any of his creditors, may decree that all the real estate of such person, or so much thereof as may be necessary, shall be sold to pay his debts," etc. This legislation is the source from which the equity courts of Maryland derive their authority to decree the sale of a deceased debtor's real estate for the payment of his debts. It is perfectly apparent that its operation is not extraterritorial. It can have no effect whatever on real estate lying beyond the limits of the commonwealth. Each state in the federal Union has the right and the power to regulate the devolution of property situated within its borders. Each may prescribe what property of a decedent shall be liable for the payment of the debts due by him, but neither can adopt an enactment which will in any way operate upon real property located in any of the others. Whilst, therefore, it is undoubtedly true that, if this land located in Ohio had been located in Maryland, it would have been liable to be sold, under the terms and provisions of our statute, for the payment of the balance due by Eva Seldner to Daniel Katz, subject to the mortgage held by Jonas Seldner, it is equally true that no Maryland court could decree its sale, as it is situated in Ohio, even though there had been no mortgage upon it, and even though it had descended or been devised to the appellants. This is so self-evident a proposition that we need not pause to cite adjudged cases in support of it.

The situation is not altered by the mutations of title effected by the negotiations and the compromise of the mortgage contest in the state of Ohio. If the compromise in reality resulted in vesting in five of the children of Eva Seldner a five-twelfths interest in the Ohio lands, it by no means follows that that interest, or any part or fraction of it, may be pursued in the hands of those children, and made liable for Eva Seldner's debt to Katz. Whether land in Ohio is answerable for the debts due by a decedent depends on the statute law of that state. If the common law prevails in Ohio, then real estate situated there, and owned by a debtor at the time of his death, is not liable for his simplecontract debts. There is no evidence in the record to show what the statute law of Ohio is on this subject. We cannot take judicial

notice of it. It must be proved. In the absence of evidence as to what its provisions are, or as to whether there is any statute at all, the presumption is that the common law is in force. State v. Pittsburgh & C. R. Co., 45 Md. 41. Now, if the decree appealed from be upheld, then one or the other of two results must follow, viz.: First, that three of the defendants who have been served with process must pay the whole balance of the debt due by Eva Seldner to Katz, in order to save themselves their three-twelfths interest in the Ohio lands, though under no circumstances could those three be answerable for more than the value of the interest they acquired; or, secondly, those same three defendants must proceed to Ohio, and there make public sale of their interest in those same lands, and then report to a Maryland court their proceedings in regard thereto, and obtain the ratification of that sale by that court. Whichever of those alternatives may be pursued, the result would ultimately be the same; that is to say, land in Ohio now owned by residents of Maryland would be made liable for the debts of a deceased debtor who held title to that land at the time of her death, and that land would be so made liable though there is not a particle of evidence in the record to show that by the law of Ohio real estate of a deceased debtor can be resorted to for the payment of simplecontract debts. There is no precedent for such a proceeding. Whilst it is true that equity, by acting in personam, may often compel the execution of conveyances of lands lying beyond the limits of the state, and that this may be done under bills for specific performance, it obviously cannot decree the sale of foreign lands in such circumstances as are disclosed by this record; nor can it make the heir at law or a devisee or purchaser accountable for a decedent's debts in the absence of all evidence showing that the land of such decedent situated beyond the state is, under the law of the state where it is located, answerable for the decedent's indebtedness. The court below was consequently without jurisdiction to enter the decree appealed from, and hence that decree must be reversed.

Decree reversed, with costs above and below, and bill dismissed.

OLD TOWN BANK OF BALTIMORE v. McCORMICK et al.

(Court of Appeals of Maryland. Jan. 21, 1903.)

BANKRUPT LAW-FARMER-SUSPENSION OF STATE INSOLVENCY LAW.

1. Const. U. S. art. 1, § 8, gives congress power to establish uniform bankruptcy laws. Bankr. Act 1898. § 4, subsec. "a" [U. S. Comp. St. 1901, p. 3423], provides that any debtor, except a corporation, may become a voluntary bankrupt, and subsection "b" enacts that any

1. See Bankruptcy, vol. 6, Cent. Dig. § &

natural person, "except a wage earner or a person engaged chiefly in farming or tillage of the soil," may be adjudged an involuntary bankrupt. Section 70, subsec. "b," provides that state insolvency proceedings commenced before the passage of the act shall not be affected thereby. Code Pub. Gen. Laws, art. 47, § 22, as amended by Laws 1896, c. 446 (Code Pub. Gen. Laws, art. 47, § 23), enumerates acts of insolvency, and provides that debtors guilty thereof may be proceeded against as insolvents. Held, that the state statute was not superseded by the bankruptcy act as to insolvency proceedings begun against a farmer by his creditors, though farmers may become voluntary bankrupts.

Appeal from circuit court, Harford county; James D. Watters, Judge.

Proceedings in insolvency by the Old Town Bank of Baltimore against J. Lawrence McCormick and others. From an order overruling demurrers to defendants' pleas, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

N. R. Gill & Sons, Dallam & Rouse, and Venable, Baetjen & Howard, for appellant. S. A. Williams and F. R. Williams, for appellees.

FOWLER, J. This is an appeal from the circuit court for Harford county. On the 22d May, 1901, the Old Town Bank of Baltimore filed a petition in insolvency against J. Lawrence McCormick and others under the provisions of article 47, §§ 22, 23, of our Code, relating to insolvents, as amended by the Acts of 1896, c. 446. The defendants each pleaded to the jurisdiction of the court. Their pleas are identical. The plea is as follows: "(1) That this court has no jurisdiction in these proceedings, because the insolvency laws of the state of Maryland have been suspended, superseded, or rendered inoperative by the passage of a national bankrupt law by the congress of the United States, and this defendant pleads the said bankrupt law in bar of the jurisdiction of this court in the premises." The plaintiff bank demurred to these pleas, but the learned judge below overruled the demurrers, and his certificate states the question raised and decided on the demurrers as follows: "That the enactment of the act of congress approved July 1, 1898 [U. S. Comp. St. 1901, p. 3418], entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' and supplements and additions thereto, suspended the operation of article 47 of the Code of Public General Laws of Maryland of 1888, entitled 'Insolvents,' and all amendments thereof, and especially suspended the operation of section 22, as repealed and amended by the act of 1896, c. 446, and section 23 thereof, including the operation of said article on persons 'engaged chiefly in farming and tillage of the soil,' and the class of persons to which the defendant J. Lawrence McCormick is alleged in the peti

tion to belong, and that this court is without jurisdiction to grant any of the relief prayed for in said petition." From the order dismissing its petition, the plaintiff has appealed. The issue thus presented is clear, and will be defined. The defendants contend that the enactment of the national bankrupt act suspended the operation of the whole insolvent law of this state, while the plaintiff maintains the position that the passage of this national law by congress suspends the operation of our insolvent law only so far as our law conflicts with the national law, and that, inasmuch as the present bankrupt law (act of congress of 1898 [U. S. Comp. St. 1901, p. 3418]) contains no provision for involuntary bankruptcy of persons engaged chiefly in the tillage of the soil, the provisions of our state insolvent law, so far as they apply to that excepted class, remain in full force and effect. The question presented must depend, in the first place, apon the provisions of the bankrupt law applicable here. Section 4, "Who may become bankrupts" (subsection "a"), provides that "Any person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt." And by subsection "b" it is enacted that "any natural person, except a wage earner or a person engaged chiefly in farming or the tillage of the soil * * may be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be subject to the provisions and entitled to the benefits of this act.

1. From the year 1819, when Chief Justice Marshall delivered the opinion of the supreme court of the United States in the leading case of Sturges v. Crowninshield, reported in 4 Wheat. 122, 4 L. Ed. 529, it has been held that the provision of the constitution of the United States (article 1, § 8, subd. 4) providing that "congress shall have power to establish uniform laws on the subject of bankruptcy," does not in itself inhibit the states from passing valid insolvent laws. In the case just cited it was said: "It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states." And so, also, there has been a uniform line of decisions to the effect that, so far as congress has failed to legislate with reference to insolvents, state laws relating to them are operative. Thus, in Sturges v. Crowninshield, supra, it is said that "if it is not the mere existence of the power, but its actual exercise by the congress of the United States, which prevents the operation of state insolvent laws, it is obvious that much inconvenience would result from that construction of the constitution which should deny to the legislatures of the states the pow er of acting on this subject in consequence of the grant to congress." "It may be thought more convenient," continued the court, "that much of it should be regulated

by state legislation, and congress may purposely omit to provide for many cases to which its power extends. It does not appear to be a violent construction of the constitution, and certainly a most convenient one, to consider the power of the states as existing over such cases as the laws of the land may not reach." But in Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606, the rule is explicit. ly laid down that "the power of congress to establish uniform laws on the subject of bankruptcy does not exclude the rights of the states to legislate on the same subject, except when the power has been actually exercised, and the state laws conflict with those of congress." And to the same effect are Baldwin v. Hale, 1 Wall. 229, 17 L. Ed. 531; Tua v. Carriere, 117 U. S. 210, 6 Sup. Ct. 565, 29 L. Ed. 855; Ex parte Eames, 2 Story, 322, Fed. Cas. No. 4,237. In the recent case of R. H. Herron Co. v. Superior Court of City and County of San Francisco, decided in April of last year by the supreme court of California, and reported in 68 Pac. 814, it was held that, "though the federal bankrupt acts suspend operation of any state laws of insolvency where there is any conflict between the two, the state laws remain in full force in so far as there is no conflict; and as the bankruptcy act of 1898 expressly exempts all corporations from voluntary bankruptcy, and only makes subject to involuntary bankruptcy 'corporations engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits,' the provisions of the state law applicable to a corporation engaged principally in mining [as was the California corporation] are not suspended." In the course of its opinion the court said: "If the bankruptcy act excepts a class of cases from its operation, either in express terms or by necessary implication, it must be considered that it was the intention of congress not to interfere in that class of cases with the laws of the several states in reference thereto." A number of cases are cited by Justice Harrison, who delivered the opinion of the court, and among them is that of Clarke v. Ray, 1 Har. & J. 318; Chief Justice Chase delivering the opinion of the court. He said: "The legislatures of the several states have competent authority to pass laws for the relief of all persons who are not comprehended within the act of congress." See, also, Van Nostrand v. Carr, 30 Md. 131. It should be remarked, however, that the situation in the California case just cited somewhat differs from the one here presented. For there the insolvent proceeded against under the California insolvent law was expressly excepted from the provisions relating to the voluntary system, and was not included within, and therefore excepted by implication from the class of corporations made subject to the involuntary system, while here the defendant who is sought to be declared an insolvent under our insolvent law is included under the gen