pellants. Hinkley & Morris, Wm. L. Marbury, A. H. Taylor, and D. Greenbaum, for appellees.

ALVEY, C. J. The decree in this case was entered pro forma, and seems to have been passed in pursuance of an agreement of counsel prescribing special terms for the hearing of the case on appeal, and for the award of costs by the court. Of course, such an agreement can have no effect here, as this case must be heard and disposed of as all other cases are heard and disposed of by this court; that is, according to the constitution and laws of the state. The bill does not profess to be filed under the recent provision of the Code for obtaining declaratory decrees, (Code, art. 16, §§ 26, 27,) whereby the court is empowered, in its discretion, to make a declaration that the party is entitled, as claimed by him, without any further or other relief being asked or given. But the bill was intended to invoke the exercise of the ordinary and long-established jurisdiction of the court for the quieting of titles, and the removing of clouds therefrom, existing to the prejudice of the party complaining. According to the allegations of the bill, William Liv. ingston, the original_complainant in this case, married Mrs. Margaret Hall, a widow, with two infant children by her first husband, and, by the plaintiff, she had four other children, all of whom survived her, and were of age at the time of her death in 1888. In June, 1865, Mrs. Livingston, the wife of the original plaintiff, acquired, by purchase, a certain lot or piece of ground in fee, in the city of Baltimore, which was deeded to her for her sole and separate use, and, in the deed, it is recited that the consideration for said deed to her was paid "out of her own separate money and estate." In July, 1866, the wife, the grantee in the deed, executed a deed to her husband, the original plaintiff, for the lot of ground so acquired by the wife; this latter deed reciting the consideration as being natural love and affection, and one dollar. The deed to the husband granted the property to him, his heirs and assigns. The bill then charges that this deed to the husband, made by the wife alone, was duly made by virtue of the power of disposition, incident to the separate estate of the wife, and that the deed to the husband "vested in him a clear legal title in fee to said lot of ground;" and it is then charged “that doubts have been raised as to the validity of the plaintiff's title, and the sufficiency of the wife's deed to him, to pass the title of said lot of ground, and, by reason of such doubts, the plaintiff is unable to sell or dispose of said lot of ground;" and the plaintiff, therefore, prays "that his title in fee to said lot of ground may be established and confirmed, and that the said doubts and clouds, as to the validity of such title, may be removed by the decree of the court;" and for general relief. As will be observed, there is no allegation that the plaintiff was in the possession of the property, or that he had been, or was about to be, disturbed in his right of possession, or that his title had been, or was threatened to be, called in question by an adverse claimant. The only allegation in

respect to a cloud upon the title is that doubts have been raised as to the validity of the title; but by whom, or in what manner, such doubts have been raised, the bill does not allege. The two children of Mrs. Livingston by her first husband, by their answer, admit the acquisition of the property by their mother, and the making the deed therefor to her husband, as alleged in the bill. But they deny that their mother had any power to make such deed, and they aver that they are advised, and therefore insist, that the paper purporting to be the deed made by their mother to her husband is absolutely null and void, and conveyed no title whatever, and that, by the death of their mother, the title to the property devolved upon her six children, as her heirs at law. The other children admit the facts alleged in the bill, but not the legal conclusion alleged as deducible therefrom, and they submit the question of their rights to the court. During the pendency of the suit, and before decree passed, William Livingston, the original plaintiff, died leaving a will, whereby, according to the allegations of a petition filed, he devised the property conveyed to him by his wife to two of his children, namely, George F. Livingston and Margaret E. Dewald, for life, with remainders over. But the will is not produced, nor is there any allegation that it has been admitted to probate; the allegation in regard thereto being simply that it had been deposited with the register of wills, and therefore could not be produced without the order of the court. Nor is it alleged or shown who are the parties entitled in remainder. The alleged devisees for life, however, upon their own suggestion, were admitted as plaintiffs, and authorized to prosecute the suit. There was no testimony taken, but the case was submitted to the court on the bill, the two deeds as exhibits, the answers and replication thereto. The decree that was passed dismissed the bill.

It is said that a bill quia timet, or to remove a cloud upon the title of real estate, differs from a bill of peace, in that it does not seek so much to put an end to vexatious litigation respecting the property, as to prevent future litigation by removing existing causes of controversy as to its title. It is brought in view of anticipated wrongs or mischiefs, and the jurisdiction of the court is invoked because the party fears future injury to his rights and interests. 2 Story Eq. Jur. § 826. But, to maintain a suit of this character, it is, as a general rule, necessary that the plaintiff shall be in the possession of the prop. erty, and, except where the defendants are numerous, that his title, if a legal one, shall have been established at law, or be founded on undisputed evidence, or longcontinued possession. Holland v. Challen, 110 U. S. 15, 20, 3 Sup. Ct. Rep. 495, and cases there cited. In the case of Orton v. Smith, 18 How. 263, it was laid down as a settled rule that those only who have a clear, legal, and equitable title to land connected with possession, have a right to claim the interference of acourt of equity to give them peace, or dissipate a cloud on the title. The principle thus formulat

time of the levy of the property set forth in the declaration, and afterwards, up to and at the moment when the sheriff, the said John H. Miles, offered the same at public auction, the equitable plaintiff affirmed and made known that the said property did not belong to him, but to his wife; that by reason of such representations no one would and did bid for the same but the plaintiff in said execution, Noah C. Stirling, who became the purchaser thereof at and for the sum of $150; that afterwards Rowena Byrd, the wife of the equitable plaintiff, in a suit brought in this court by the said Stirling, to which said suit the said plaintiff was a party, was adjudicated to be the owner of the said property in fee, by reason of which the said Stirling never in fact paid the said purchase money. Wherefore these defendants say that the said land was not the property of the equitable plaintiff, and that he is not entitled to any exemption therefrom, as the plaintiff hath alleged, and this they are ready to verify." The facts set forth in the foregoing plea are, for the purposes of the demurrer, admitted to be true, and we think they constitute a full and sufficient answer to the plaintiff's claim. It would be contrary to every principle of equity and fair dealing to allow the plaintiff to disclaim all title to and interest in the land sold, and at the same time to claim the benefit of the provisions of the exemption law. Such a claim is also contrary to the spirit and letter of the law itself, which provides that "if any property of any defendant" cannot be divided, etc., then the whole shall be sold, and the defendant shall have $100 in money. According to the allegations of the plea the defendant had not only declared at the sale that the land did not belong to him, but a court of competent jurisdiction afterwards adjudicated the wife to be the owner of the said property in fee. Unless the property is his, the plaintiff is not entitled, under the statute, to any exemption, and the demurrer to the first plea should have been overruled, as well as the demurrer to the second plea, which alleges "that, before the sale made by the said sheriff, the equitable plaintiff, by a good and sufficient deed, duly recorded, conveyed to his wife, Rowena Byrd, all his right, title, and interest in and to the said land, wherefore the said equitable plaintiff had no property which was so taken and sold by the said sheriff, as set forth in the declaration."

Having concluded that the plaintiff has not a valid claim, it becomes unnecessary to consider the third plea, which relates altogether to the time when such a claim must be asserted, and alleges that the plaintiff did not interpose his claim before the sale. It may be said, however, that this plea is based upon an erroneous theory, for it has been held in Bramble v. State, 41 Md. 435, that the rights of a judgment debtor in regard to claiming his exemption in money are governed by section 10 of article 83 of the Code, when a single article of personal property, or, as here, a single parcel of land, is to be sold. In that case it is said that "length of time

in making the demand will not excuse the sheriff, unless such period has elapsed as will enable him to plead limitations." Where, however, the judgment debtor wishes to select property, real or personal, to the value of $100, under section 9 of the same article "the claim must be asserted at least before the sale has commenced." State v. Boulden, 57 Md. 320. It does not follow that, because the plaintiff is estopped and cannot recover under the pleadings in this case, the defendant will not be required to account for the purchase money. On the contrary, having the money in his hands in contemplation of law, if not in fact, it is the duty of the defendant, as sheriff, the sale remaining unrescinded, to distribute the net proceeds thereof to the party or parties entitled thereto,-namely, to the judgment creditor, Noah C. Stirling, as the case now stands, who happens to be the purchaser also. It follows that there was error in sustaining the demurrer to the first and second pleas, and that the judgment below must be reversed, and cause remanded.

(73 Md. 326) PITTS V. MAYOR, ETC., OF CITY OF BALTI

MORE.

(Court of Appeals of Maryland. Jan. 16, 1891.) DEDICATION-WHAT CONSTITUTES.

1. An advertisement of sale of land, which certain trustees had platted, recited as to a portion of the land that "the beds of streets includ. ed in the said 6 acres will be sold with the house, and the streets are to be held by the purchaser, until the same are legally opened." This portion was sold at private sale, and the deed described the land by outlines, and did not mention a certain street included therein, but recited that the land was conveyed "subject to the rights of the purchasers of the other portions of the trust estate, to the use of all the streets * in any manner intersecting or bounding upon the abovedescribed parcel of land, whenever the same shall be legally condemned and opened." A subsequent deed conveyed the land subject to the same reservations. A lease of the land by the last grantees, which referred to streets as boundaries, recited that it was not intended to dedicate the streets to the public, but that they were referred to for purposes of description merely. A subsequent receiver's deed of the land conveyed the beds of the streets within the outer lines subject to the lease. Held, that these conveyances constituted no dedication of the land in the streets.

2. The lessees acquired no easements under the lease in the bed of the streets which would deprive the owners of the land of their right to compensation when the streets should be opened, or which would reduce the amount of their damages.

8. A deed by the trustees for another part of the platted land, which describes the land conveyed by reference to the streets, and makes no reference to the beds thereof, and made in pursuance of a sale at public auction under the plat, and an advertisement containing no reference to the beds of the streets, constitutes a dedication. Appeal from Baltimore city court. Argued before MILLER, ROBINSON, IRVING, BRYAN, MCSHERRY, and FOWLER, JJ.

B. Carter & Sons, for appellant. W. A. Hammond and Albert Ritchie, for appellee.

MILLER, J. Ordinances were passed on the 8th of June, 1889, for the opening of

Ann street, as laid down on Poppleton's plat, from Oliver street to North avenue, and of Register street, formerly Argyle alley, between the same points. The appellant, who is the owner of the whole bed of Ann street between Townshend street and North avenue, and of one-half the bed of Register street between the same points, claimed compensation therefor, but the street commissioners determined that these streets had been dedi

Case, 33 Md. 270; McCormick's Case, 45 Md. 512; Tinges' Case, 51 Md. 601; Hall's Case, 56 Md. 187; White's Case, 62 Md. 362; and Glenn's Case, 67 Md. 390, 10 Atl. Rep. 70. The present cases, so far as the question of dedication is involved, must be disposed of by application of the principles established by these authorities.

The record shows that a large tract of land in the north-western part of Baltimore city, partly within and partly be

ing, or nominal damages only. An appeal was taken in each case to Baltimore city court, where they were tried together, and they come here upon exception taken to the rulings of that court in granting and rejecting certain prayers offered on either side.

or

It has been decided by this court in a number of cases that in order to make out a dedication, an intent on the part of the owner to dedicate his land to the particular use alleged is absolutely essential, and, unless such intention is clearly proved by the facts and circumstances of the particular case, no dedication exists. The evidence of such intention is furnished in various ways; but as dedication will be presumed where the facts and circumstances of the case clearly warrant it, so that presumption may be rebutted and altogether prevented from arising by circumstances incompatible with the supposition that any dedication was intended. One of the modes by which dedication may be evidenced is where a street is designated on a plat made by authority, or by the party himself, as passing over certain lands, and the owner subsequently conveys lots fronting bounding on such street, he remaining the owner of the fee in the bed of the street; this is held to be a dedication of the land over which the street passes to the public use, and on opening the street the owner of the fee will be entitled to nominal damages only as compensation. In such case the sale and conveyance of lots so bounded upon the street in the plan of a town or city imply a grant or covenant to the purchaser that the street thus indicated and called for shall be and remain forever open to the use of the public, free from all claim or interference of the proprietor of the estate therein inconsistent with such use. It is supposed the existence of the street, either present or prospective, entered into the consideration of the purchase, and thus the grantor of the lot or lots sold has been compensated for the public use of the street, and is therefore estopped to make any further claim for such use as against the public. But the implication of such a covenant may be rebutted in many ways, as by other express covenants or agreements between the parties, or by the fact that the call for the street was made merely for the purpose of convenient description of boundaries as in case of the partition of an estate among heirs, or by any other facts and circumstances showing the absence of an intention to dedicate to public use. As sustaining these propositions we refer to the cases of White v. Flannigain, 1 Md. 539; Moale's Case, 5 Md. 314; Hawley's

"

by Malcolm and Talbott, trustees under certain deeds of trust, for the benefit of creditors. On this tract was a mansion or dwelling-house, and the trustees, in order to sell it to the best advantage, had a plat made of the whole tract, dividing it into sections, each of which was subdivided into building lots. On this plat there were located Ann street, Argyle alley, and several other then unopened streets laid down on Poppleton's plat, and also many alleys apparently laid out by the trustees, on all of which building lots were delineated as fronting or bounding. The part of this estate sold by these trustees to John Boyd is that with which this controversy is mainly concerned. In the advertisement of sale, sections 22, 27, 33, and 34 were described as containing "about six acres, on which is a large and commodious dwelling, with all the necessary out-buildings, and about six acres attached thereto, fronting on North avenue, Ann and Wolfe streets. This was formerly the country-seat of Dr. Dinkel, and is now ready for the occupation of any purchaser desiring a first-class house. The beds of the streets included in the said six acres will be sold with the house, and the streets are to be held by the purchaser until the same are legally opened. These six acres were not sold at public sale, but were subsequently sold at private sale, including the adjoining sections, 23 and 26, extending on the south as far as Townshend street, to John Boyd, for $12,000, and the deed to him from the trustees, which was executed on the 19th of August, 1857, conveys the six acres with the two additional sections as one lot. The outlines, so far as it is necessary to refer to them, run "westwardly along the middle or centre of Townshend street to intersect a line drawn north and south along the middle or centre of Argyle alley, thence northwardly along the middle of Argyle alley to the centre of North avenue. The deed makes no mention of Ann street, but the whole bed of it, between Townshend street and North avenue, is included within the outlines just mentioned. It conveys the land within these outlines, "subject to the rights of the purchasers of the other portions of the trust estate, to the use of all the streets, avenues, lanes, and alleys in any manner intersecting or bounding upon the above-described parcel of land whenever the same shall be legally condemned and opened." After Boyd's death, the trustees, under his will, sold and conveyed this property to John Ruper, George R. Clarke, and William M. Burgan for $30,000. The conveyance to them, which bears date March 3, 1888, describes the property as being the same ground that was conveyed

to Boyd by Malcolm and Talbott by their deed of the 19th of August, 1857. It also contains the same description of the outlines as running along the middle of Townshend street and Argyle alley, and the land is conveyed to the grantees, "subject, however, to all the reservations and rights with reference to streets and alleys through the above-mentioned ground contained in the deed from Malcolm and Talbott to Boyd." Shortly afterwards, on the 20th of March, 1888, the grantees in the last-mentioned deed executed to Erastus B. Tucker a lease for 99 years, renewable forever, of 135 lots of ground, "being parts of the whole lot of ground" conveyed to them by the deed of the 3d of March, 1888. This instrument is a very long one. It describes each of the lots, and whenever any of them bound or front on Ann street or Register street these streets are duly called for in the description of its boundaries. It provides that alleys 10 feet wide, which are specially designated and are 11 in number, "shall be forever kept open for the use in common, not only of all lots bounding on each of said alleys respectively, but also of all the lots on any other of said alleys which communicates with such alley in any manner whatsoever." And in the concluding part there is this important clause: "And it is hereby expressly declared that it is not intended by anything herein contained to dedicate any of the streets or alleys mentioned and referred to in this lease, or the beds of the same, or any part thereof, the same being herein mentioned and referred to for the purpose of location and description merely, and not for the purpose of dedication; and Register street being hereby intended to be widened for the benefit only of the parties claiming under this lease, and not for the benefit of the public, it not being intended to give the public any rights whatsoever in any of the streets or alleys mentioned in this lease. This lease was signed both by the lessors and the lessee, and was duly recorded. After this the affairs of the lessors were placed in the hands of receivers, who, acting under a decree in equity, sold the interest of the lessors in this property to Charles F. Pitts, Jr., the appellant, for $22,500. By their deed to Pitts, dated the 5th of June, 1889, the receivers state that they had sold to him for this sum all the property, divided into 135 lots, which is fully set forth on the plat annexed to their report of said sale, the said sale including all the title and interest of the parties to the said proceedings, to one-half of the beds of North avenue, Durham, Townshend, and Register streets, bounding on the property, and the beds of all other streets and alleys on the said plat, (the sale comprehending therefore all the right, title, and interest of the parties to the said cause in and to all the ground bounded by, and included between the center lines of North avenue, Townshend street, Durham street, and Register street,) and the deed conveys the property thus described to the grantee, "subject, however, to the lease to Tucker dated March 20, 1888." We have thus traced the title to this property down to the appellant, giving the clauses of each convey

ance bearing upon the question before us. It was also shown by parol proof that at the time of the sale by Malcolm and Talbott, and down to the time when the city opened North avenue from Greenmount avenue to Belair avenue under an ordinance passed on the 8th day of November, 1873, the Mansion house and the six acres attached thereto were continually occupied as a country residence; that the ground so occupied in connection with the house was inclosed by a fence; that neither Ann street, Argyle alley, North avenue, nor any other street or alley laid down on the plat made by Malcolm and Talbott, was at the time of the sale, or the date of the deed to Boyd, actually opened on the ground or used as a highway or road through the property so sold by them; that the ground so within said inclosure was used partly for lawn and garden purposes, partly for pasture, and access to the house was by means of a lane or road not occupying the bed of any street or lane laid down on said plat; that as late as the 5th of June, 1889, only three days before the passage of the ordinances for their opening, no part of Ann street or of Register street, proposed to be opened by the proceedings in these cases, was actually opened or used as highways or roads; and that the ground in the beds of said streets was in such condition that it could not be used as a road or highway until graded. We have carefully considered the terms of the advertisement of sale made in 1853 with those of all the subsequent conveyances, and, as we construe them, they not only fail to prove an intent on the part of the several owners to dedicate the beds of these streets to public use, but clearly show a contrary intent. They, all of them, seem to have been carefully prepared and drawn for the very purpose of avoiding and preventing such dedication. The implication of a grant or covenant to that effect is thoroughly repelled. We are therefore clearly of opinion there was no dedication effected by these conveyances.

But it is said that, though there may have been no dedication of the beds of these streets to public use, yet under the lease of March 20, 1888, the lessee and his assigns acquired easements in the beds of these streets, and became entitled to the use thereof, for the use and benefit of the lots fronting or bounding thereon, and the appellant therefore can only recover such damages as the jury may find he will sustain by the condemnation of these streets as public high ways, taking into consideration the fact that he holds the beds of said streets subject to said easements. The court below adopted this view by granting the appellee's eighth prayer to that effect, and the result was that the jury gave a verdict for nominal damages only. The granting of this prayer involves the proposition that, though both lessor and lessee expressly agreed by the lease that the reference to the streets in describing the boundaries of the several lots was made "for the purpose of location and description merely," yet by such reference and description the lessors have granted, and the lessee has acquired, perpetual easements over them in favor of the lots,