of suit. The only ruling of the court below which the record brings up for review is that upon the prayers submitted by the respective parties. The prayer which was offered by the appellees and granted by the court asserted the proposition that if the court (which was sitting as a jury) should find that this contract was entered into between the parties to the suit, and the other facts therein set out, and should then further find that "the city chemist did not make the analyses of the coal furnished to the school board during the month of July, 1901, until September 6, 1901, its verdict must be for the plaintiffs (appellees) for the amount of coal bills for the months of July and August, yet remaining due and unpaid to the plaintiffs by the defendant, together with interest in the discretion of the court on the amount so found to be due and unpaid from October 1, 1901." The nature of the evidence offered by the appellees under the pleadings, and this instruction based thereon, in effect, make this case a suit upon the contract by the appellees in which they are not confined to a recovery of such damages as they might be able to show they had sustained from a breach of the contract without fault on their part, but are enabled to treat the contract as not existing, as respects the appellant and its rights thereunder, and to secure to themselves all the fruits thereof, as far as it had been performed, without requiring them to show that they had performed, or were ready, able, and willing to perform, the contract in its several requirements on their part. This ignores important evidence in the case affecting the rights and obligations of the parties to the contract. The gravamen of the instruction granted at the instance of the appellees, and the ground upon which they based their rescission of the contract, consisted in the failure of the appellant to pay "for the coal by them furnished" to the appellant for account of the school board "during the month of July, 1901, at any time in the month of August, 1901, and up to and until September 3, 1901." The contract provided that payments should be "made once a month by each department for all coal delivered to that department by the contract during the previous month," and should "be made on the basis of what the coal" showed "on analysis." The provision for an analysis of the coal was an important one to the city, not so much in fixing the exact price of coal delivered, but in protecting the city against having supplied to it coal of inferior quality. The city, of course, could only act through its agents, and no agent would have been justified in making payment for coal delivered until furnished with the analysis stipulated for in the contract. The appellees, of course, knew this, or must be held to have known it. It was the duty of the city, however, to have the analysis in every case furnished within reasonable time. and so that payments could be made for coal in accordance with the stipulation in the contract in that regard. Now, as to the analysis of the coal here in question, the testimony shows that the city chemist, in answer to a letter addressed to him by the appellees, wrote them on the 2d of August, 1901, "it will be some time before the coal delivered to the schools will be ready. There will only be one analysis for each district from each shipper, and the samples which I now have will be kept until all the coal to the schools is delivered, when I shall mix the samples and furnish the school board with the analysis. I will consider it a favor if you will kindly let me know when all the coal which you are delivering to the several schools under your contract has been delivered." The chemist, as a witness, testified that he had had a misconception as to how the analysis for this coal was to be made, but that during August he learned from the proper city officials how it was to be made; that he had "a number" of visits from the appellees or one of them during August to inquire about the analysis, and there was no complaint "about any delay" on his part "in furnishing the analysis"; that he understood, and thought it was understood "by all hands concerned," that "only one analysis should be made for the summer of 1901" (referring, of course, to the analysis of the coal for the school board); that he had an analysis ready by September 6, 1901; and that it took three or four days to make it, as he had a good many analyses from the other departments, and they had to take their turn. A brother of the appellees, an attorney, who represented them in their dealings with the city, as shown by his own and other evidence, testified as follows: "The July payment under the contract which we had with the mayor and city council under date June, 1901, we did not consider due until the 1st of September following." There is other testimony that might be adverted to in this connection; but what has been noticed is sufficient, with the further fact that after the letter of the 2d of August, 1901, the appellees went on delivering coal under the contract, to show that they waived such right as they may have had to rescind the contract because of the analysis not being furnished in August. They treated the contract as still in force, holding the appellant bound by all the terms thereof, and apparently intending on their part to continue its performance, without any notice of an intention to rescind or any act indicating such intention until September 3, 1901. The present suit was brought, and the recovery here sought was based, on the assumption of the contract being a subsisting one up to that date. The appellant was entitled to have these facts submitted to the trying tribunal, and to the legal effect to flow from them if they should be found. Bollman v. Burt, 61 Md. 415; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. Rep. 415; Waggaman v. Nutt, 88 Md. 265-276, 41 Atl. 154. On the 3d of September, 1901, upon the theory of a waiver by the appellees of an analysis of coal during August, there were two reasons why the appellees were not entitled to rescind the contract. To entitle them to call upon the appellant for performance on its part on the penalty of a rescission of the contract, in case of a neglect of strict performance, it was incumbent on them to show that they had fully complied with the agreement on their part (Waggaman v. Nutt, 88 Md. 265, 267, 276, 41 Atl. 154), unless there be some reason appearing which in law is a legal excuse for not performing. The contract here in question contained a stipulation, by reference to an accompanying table, that the appellees should deliver to the appellant for use of the school board something over 6,600 tons of coal, and that two-thirds of this amount should be delivered during the months of July and August. The appellant was not only entitled, by this stipulation, to have this quantity of coal delivered, but also to have coal that would come up to the analysis prescribed and provided for in the contract. It did not gratify the contract to have a part of the coal delivered and coming within the analysis. The contract could only be gratified by having all the coal delivered and all coming up to the analysis. When on the 3d of September, 1901, the appellees attempted to rescind the contract instead of having delivered two-thirds of the coal as required, they had by their own showing delivered less than one-third. How could they complain of the absence of an analysis upon which payment for the coal was to be based when they had failed to deliver the coal of which the contract contemplated the analysis was to be made? There is no excuse attempted to be shown for nonperformance of the contract on their part by the appellees other than that having reference to the absence of an analysis of the July delivery of coal, which has already been considered. But, even if there had have been performance by the appellees of the stipulation of the contract as to the quantity of coal to be delivered, there would still have been no sufficient legal justification for a rescinding of the contract on the 3d of September, 1901. No definite fixed day was prescribed in the contract on or before which the analysis should be made ready. The obligation imposed in this regard, therefore, upon the appellant was to have it ready in a reasonable time, subject, of course, to the provision in the contract as to making payments for coal. What is a reasonable time is a question of law for the court. 2 Parsons on Cont. 661; Ragan v. Gaither, 11 Gill & J. 472; Burroughs v. Langley, 10 Md. 248; Mispelhorn v. Farm. Fire Ins. Co., 53 Md. 473. The proof in the case shows that an analysis of the coal in question was ready within one week from the end of August, and the appel lees were so notified. From what appears in evidence, this was not an unreasonable delay of the analysis of the quantity of coal that was to be made the subject of analysis. The instructions granted by the trial court at the instance of the appellees, in ignoring the facts and considerations pertaining to a waiver of analysis of coal delivered in July, and to the right of the appellees to rescind the contract on the 3d of September, 1901, shut out the defense of the appellant raised by its third plea, and which there was evidence tending to support. In this, in my judgment, there was error. I agree with the majority opinion as to the rulings made upon the prayers proposed by the appellant. (96 Md. 520) TAYLOR v. FORREST. (Court of Appeals of Maryland. Feb. 11, 1903.) TAX SALE-REPORT BY COLLECTOR-DEED. 1. Under Code Pub. Loc. Laws Baltimore City, art. 4, § 832, providing that, where lands are sold for taxes, the collector shall report the sale, with the proceedings, to the circuit court, which shall examine them, and if they appear regular, and the provisions of law in re spect thereto have been complied with, shail order the sale ratified and confirmed, the report must be made by the collector who makes the sale; otherwise the sale is void. 2. Code Pub. Loc. Laws Baltimore City, art. 4, § 834, providing that the collector shall, when required, if the property sold for taxes is not redeemed at the expiration of a year and a day from the day of sale, execute a deed to the purchaser, requires the deed to be made by the collector who made the sale. Appeal from Baltimore city court; J. Up shur Dennis, Judge. Action by Mary C. Taylor against Hattie V. Forrest. Judgment for defendant, and plaintiff appeals. Reversed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. John V. L. Findlay and Thomas Mackenzie, for appellant. Charles A. Briscoe, for appellee. BRISCOE, J. The plaintiff brought an action of ejectment against the defendant in the superior court of Baltimore city to recover the reversion in a certain lot of ground, situate at the southeast corner of Trinity and Exeter streets, in the city of Baltimore. The case was tried before the court, without the intervention of a jury, upon an agreed statement of facts, which are fully set out in the record. The judgment being in favor of the defendant, the plaintiff has appealed. The title of the defendant rests upon a tax sale of the property in question, dated the 17th day of December, 1895, and made by Lewis N. Hopkins, collector of taxes for Baltimore city, for the years 1893 and 1894. The property was purchased by Wm. E. Croswell, the predecessor in title of the defendant. The plaintiff's title is derived as devisee of one Margaret J. Keys, who died on the 28th of December, 1900, and by her will, duly admitted to probate, devised the lot of ground, and the ground rent issuing thereout, to her sister, the appellant. The plaintiff's title appears to be good and sufficient, if the defendant derived no title to the property under the tax sale. The questions of law are presented for our consideration on the rulings of the court on the prayers, and the controversy relates to the regularity and validity of the proceedings under the tax sale. vious, then, from an examination of the stat ute applicable to this case, that the report of sale, and the proceedings had in relation thereto, by the collector who made the sale, are essential requirements of the statute; and being conditions subsequent to the sale, prescribed by the statute, no title will pass to the purchaser where the collector fails to perform this duty. The manifest object and policy of the law in requiring a report of the sale and the collector's proceedings is to enable the owner to ascertain the fact of sale, and to protect his interest by contesting the validity of the sale, or by a redemption of the property within the period allowed by law. The proceedings, says Mr. Blackwell, in his work on Tax Titles, vol. 1, sec. 644, is against the owner's will, in hostility to his rights, and for the purpose of subverting his title. There are no parties to the proceeding but the state, officer, and purchaser. The officer is not his agent, and has no power to bind him, except so far as he pursues the imperative provisions of the law. In the present case, it will be seen, while Mr. Hopkins, the collector, made the sale to pay state and city taxes due and in arrear for the years 1893 and 1894, and payable by him as such collector, the report to the circuit court of Baltimore city was subsequently made, signed, and sworn to by John F. Parlett, his successor in office, and this report was not made until over a year after the sale. Was the report, then, as thus The sale of the property, through which the defendant claims title, was made on the 17th of December, 1895, by Lewis N. Hopkins, collector, for the nonpayment of state and city taxes amounting to $68.50, due and in arrear, for the years 1893 and 1894, by one Mary A. Forrest. The property was assessed at $1,900 in the name of Mary A. Forrest, who at the date of the sale held only a life estate; but it was sold by the collector, in fee simple, to the purchaser, for the sum of $135. The sale was on the 29th of December, 1896, reported to the circuit court of Baltimore city by John F. Parlett, the then collector, and the successor of Mr. Hopkins, and was subsequently, on the 14th day of April, 1897, ratified and confirmed by the court. Now, the effect of an order of ratification by the court is simply to establish a prima facie case. The regularity of the proceedings under the sale, and the title of the purchaser derived from the sale, can be at-made, in this case, a compliance with the tacked, if the collector has failed to comply with the law. The collector's power to sell property for taxes is conferred by statute, and the law is well settled that, in order to render a sale valid, there must be a substantial compliance with the essential requirements of the law from which this power is derived. The statute provides (section 52 of article 81 of the Code of Public General Laws, and section 832 of article 4 of the Code of Public Local Laws of Baltimore City) that in all cases where lands held in fee simple, etc., have been sold or shall be sold for payment of taxes in arrears, according to the provisions of existing laws, it shall be the duty of the collector of taxes to report the sale, together with all the proceedings had in relation thereto, to the circuit court of the county where said lands are situate, or, when lands are situate in Baltimore city, to the circuit court of the city. It is further provided that the court to which such report shall be made shall examine the proceedings, and if the same appear to be regular, and the provisions of law in relation thereto have been complied with, and if, after the notice required by the statute has been given, and no cause to the contrary has been shown, the sale shall, by order of court, be ratified and confirmed, and on the payment of the purchase money, the purchaser shall have a good title to the property sold. Baltimore City Code 1892, art. 50. It is ob statute? If not, it is quite clear, the sale is void and a nullity, because the report of sale is an essential condition precedent, required by the statute to be performed, and a substantial prerequisite to the validity of the purchaser's title. The statute, it seems to us, can have but one meaning, and that is that the report of the tax sale, and all the proceedings in relation thereto, must be made by the collector who made the sale. The report should be made by the collector with all convenient speed after the sale, in order that the owner of the land, and others in interest, may have information of the facts, so as to decide upon the right of redemption or contest the validity of the proceedings. The law does not authorize the successor in office of a collector of taxes to report the sale made by a predecessor in office; and in the absence of such statutory authority and of law from which such a power is derived, it is difficult to see how it can be exercised by him. Collectors of taxes, under our revenue laws, are statutory officers; and, their powers being derived from statute, the title of purchasers at tax sales is made dependent upon a compliance with the law. In the case of Duvall v. Perkins, 77 Md. 589, 26 Atl. 1085, it is said that, without some express authority conferred by the legislature, a sheriff is powerless to complete an execution commenced by his predecessor, and the successor of a collector has no great er authority in this respect than the successor or a sheriff. But it is urged upon the part of counsel for the appellee, in his supplemental brief, that it has been an established custom and usage in the city of Baltimore for more than 25 years for the successor of a collector of taxes to report sales of real estate made by his predecessor in office. We fail to find any warrant in law, or any authority under the statutes applicable to Baltimore city, even should it be conceded that such a custom has prevailed in the city, that could sustain such a practice. The statutes referred to by the appellee cannot, in our opinion, be so construed. The second objection relates to the deed executed to the purchaser. Mr. Parlett, clearly, had no authority to execute the deed in question. The statute (article 4, § 834, Public Local Laws of Baltimore City) provides that the collector shall, when required, if the property so sold shall not be redeemed at the expiration of a year and a day from the day of sale, and on payment of the full purchase money, execute a deed for the same to the purchaser. This clearly means that the collector who made the sale must execute the deed, and, without legal authority, the property cannot be conveyed by the successor in office. There was no order of court in this case authorizing the execution of the deed by the successor of the then collector. Code, art. 81, § 58; Miller v. Williams, 15 Grat. 213; article 50, § 51, p. 1045, Baltimore City Code 1892. Our conclusion, then, is, for the reasons stated, that the tax sale in question was void, and the purchaser acquired no title to the property so sold. The plaintiff's first prayer, which ruled that, under the pleadings and evidence, the plaintiff had shown such a title and right of possession to the property described in the declaration as entitled her to recover, should have been granted. The defendant's prayer, which was the converse of the plaintiff's prayer, should have been rejected. For the errors in rejecting the plaintiff's prayer and in granting the defendant's prayer, the judgment will be reversed, and a new trial awarded. Judgment reversed and new trial awarded, with costs. (96 Md. 357) EWELL v. McGREGOR et al. (Court of Appeals of Maryland. Jan. 22, 1903.) WILLS-PECUNIARY LEGACIES-PAYMENTCHARGE ON REAL ESTATE. 1. Act 1894, c. 438, providing that the real estate of a testator, not specifically devised, shall be charged with the payment of pecuniary legacies when the personalty is insufficient, unless a contrary intention clearly appears, is, by its explicit terms, not applicable to wills made before it went into effect. 2. Previous to the adoption of Act 1894, c. 438, making real estate chargeable with pe cuniary legacies unless otherwise directed, the 54 A.-8 real estate of a testator was not chargeable with the payment of pecuniary legacies, unless a clear intention to the contrary appeared in the will, either by express words or by a fair and reasonable implication. 3. In a will made prior to the enactment of Act 1894, c. 438, testator gave his property to his wife during widowhood, with remainder to his children, to be distributed equally among them, with the exception that the executor was directed to pay before distribution two pecuniary legacies; one of them to a grandson, out of the property due one of his daughters under the will. The executor was not empowered to sell the real estate, nor were any directions given that it should be sold, and upon the death of the widow it was divided by partition. Held, that the real estate set off as the daughter's share in the partition proceedings was not chargeable with the legacy to the grandson, which had not been paid by the executor. Appeal from circuit court, Prince George's county, in equity; George C. Merrick, Judge. Bill by Jesse Ewell against Mary E. McGregor and another. From an order sustaining a demurrer to the bill and dismissing it, complainant appeals. Affirmed. Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Wells & Wells and Robt. A. Hutchison, for appellant. C. H. Stanley, J. K. Roberts. and Alan Bowie, for appellees. MCSHERRY, C. J. The bill of complaint in this case was filed to enforce the payment of a legacy bequeathed by a certain Nathaniel M. McGregor to his grandson Jesse Ewell. McGregor made his will in January, 1869, and died in the following year. By his will he gave all of his property of every kind and description to his wife during widowhood, with remainder at her death to his children, "to be divided into six equal parts or proportions, and distributed among six children," who were named, "share and share alike, with the following exceptions; that is to say: I desire that my executor hereinafter named, before making the distribution hereinbefore directed, shall pay unto my daughter Susan E. McGregor, in addition to her said property, the sum of six hundred dollars, to be deducted out of the property due my daughter Mary Eliza, and also four hundred dollars out of the property so due my daughter Mary Eliza, unto my grandson Jesse Ewell." Roderick M. McGregor was appointed executor, but was given no power to sell the real estate, and there is no direction that the realty should be sold by any one. In 1894 the widow of the testator died. Proceedings were subsequently instituted for a partition of the real estate of which the testator had been seised at the time of his death. Commissioners were appointed to make the partition, and their report, wherein they awarded a parcel of land designated "Lot Number Five" to Mary Eliza McGregor, one of the daughters, was finally ratified by the circuit court for Prince George's county. The legacy of $400 to Jesse Ewell has never been paid, and it is alleged that there is no personal estate of the testator with which to pay it. The bill of complaint charges that in these circumstances the legacy is a charge and lien upon lot No. 5, so awarded to Mary Eliza as her interest in her father's estate: and the relief prayed against the executor and Mary Eliza McGregor is a sale of lot No. 5 under a decree, so that out of the proceeds the legacy and accrued interest thereon may be paid. To this bill Mary Eliza McGregor demurred. The court below sustained the demurrer, and dismissed the bill. From that order the pending appeal was taken. The single question is this: Is the legacy of $400 a charge or lien upon the share of the testator's estate devised to his daughter Mary Eliza, as that share has been partitioned and awarded to her? If the legacy was not made by the will a charge or lien upon the real estate of the testator, then no part of that real estate can be sold for its payment, and consequently the portion acquired by the daughter would not be chargeable with it. So the whole controversy resolves itself into the inquiry, is the legacy a charge upon the real estate devised? The will was made and became operative before Act 1894, c. 438, was adopted. That act provides that the real estate of a testator, not specifically devised, shall be charged with the payment of pecuniary legacies when the personal estate is insufficient to satisfy them, unless a contrary intention shall clearly appear. By the explicit terms of the statute the enactment is not applicable to wills made before it went into effect. It must, therefore, be laid out of view in considering the question now before us. How stood the law when the will spoke? In the absence of a clear intention to charge a pecuniary legacy on real estate, manifested either by express words or by a fair and reasonable implication, all such legacies were payable only out of the personal estate which remained after the extinguishment of all debts. According to the. terms of the will, the testator had both real and personal estate at the time of his death, and it is averred in the amended bill of complaint that the personal estate was inadequate to discharge the debts due by the testator and to pay the legacy. Unless, then, there is to be found in the will a clear intention to fasten this legacy on the land devised to the daughter Mary Eliza, and unless that intention be revealed in one or the other of the two ways named, the appellant, Ewell, is without remedy. There is no direction in the will to convert the real estate into money, and consequently the share given to the daughter cannot be considered personalty. The executor was not empowered to sell the land at all, and partition proceedings were resorted to for the purpose of dividing it. The executor, and not the daughter, was directed to pay the legacy. And he was directed to pay it "before making the distribution" between the six children, as prescribed by the will. Inasmuch as the legacy was to be paid by the executor, and to be paid by him before he "divided" or "distributed" the estate into six equal shares, it is obvious that the duty to pay was imposed upon him, and not upon the daughter; and, whilst her share was to be diminished by the amount of the two pecuniary legacies, it was to the executor, and to no one else, that the legatees could look for payment. In the case of White, Exr., v. Kauffman et al., 66 Md. 93, 5 Atl. 865, this court had before it the question as to whether certain legacies were a charge on land devised. The terms of the will were not the same as those in the will now before us, but a portion of the judgment of the court is quite applicable here. On the page above referred to it is said: "When we look at the clauses of the will giving these legacies, we see that the executor is directed to pay them out of the estate. No portion of the real estate is devised to him, and consequently the only portion of the estate over which he has any control is the personalty. It would not be reasonable to construe the will as requiring him to pay out of the realty when the same will has placed it beyond his reach. It seems to us, therefore, clear that, if payment is to be made by the executor, it must be made out of the personalty. If we now turn our attention to the clause devising the real estate, we find that it is given to the devisee unconditionally. There is no direction or request or intimation that she shall pay the legacies." Had the daughter Mary Eliza been charged with the duty to pay the legacy, an implication would have arisen that the intention of the testator was to fasten the legacy as a lien on the land devised to her. Ogle v. Tayloe, 49 Md. 158. But there is no such duty imposed upon her, and in the condition in which the law stood when the will spoke the legacy was payable by the executor only out of that part of the personalty to which Mary Eliza was entitled, and, that failing, the legacy was lost. This is the conclusion which the lower court reached, and, as we concur therein, the order appealed from will be affirmed. Order affirmed, with costs. (96 Md. 584) JOHNSTON et al. v. LIPPERT et al. (Court of Appeals of Maryland. Feb. 11, 1903.) RECEIVERS-INJUNCTION-BILL OF COMPLAINT -ALLEGATIONS-SUFFICIENCY. 1. A daughter of a decedent, who shortly before her death had distributed her property among her three children by deeds, filed a bil against the others which alleged that they, by undue influence, when decedent was lacking in testamentary capacity, had obtained the deeds; that the value of the property deeded to each of defendants exceeded that given complainant; and that one of defendants, who was administrator, had refused to account to the orphans' court for the property conveyed to defendants, or to take steps to have the same set aside. A receiver was appointed, and an injunction granted, restraining defendants from disposing |