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of suit. The only ruling of the court below, and so that payments could be made for which the record brings up for review is coal in accordance with the stipulation in the that upon the prayers submitted by the re contract in that regard. Now, as to the anspective parties. The prayer which was of alysis of the coal here in question, the tesfered by the appellees and granted by the timony shows that the city chemist, in ancourt asserted the proposition that if the swer to a letter addressed to him by the apcourt (which was sitting as a jury) should pellees, wrote them on the 2d of August, find that this contract was entered into be- | 1901, “it will be some time before the coal tween the parties to the suit, and the other delivered to the schools will be ready. facts therein set out, and should then fur There will only be one analysis for each ther find that "the city chemist did not district from each shipper, and the samples make the analyses of the coal furnished to which I now have will be kept until all the the school board during the month of July, ! coal to the schools is delivered, when I shall 1901, until September 6, 1901, its verdict mix the samples and furnish the school must be for the plaintiffs (appellees) for the board with the analysis. I will consider it amount of coal bills for the months of July ! a favor if you will kindly let me know when and August, yet remaining due and unpaid all the coal which you are delivering to the to the plaintiffs by th defendant, together several schools under your contract has been with interest in the discretion of the court delivered." on the amount so found to be due and unpaid The chemist, as a witness, testified that he from October 1, 1901.” The nature of the had had a misconception as to how the analevidence offered by the appellees under the ysis for this coal was to be made, but that pleadings, and this instruction based there- during August he learned from the proper on, in effect, make this case a suit upon the city officials how it was to be made; that he contract by the appellees in which they are had "a number" of visits from the appellees not confined to a recovery of such damages or one of them during August to inquire as they might be able to show they had sus about the analysis, and there was no comtained from a breach of the contract with- | plaint "about any delay" on his part “in furout fault on heir part, but are enabled to nis the analysis”; that he understoo treat the contract as not existing, as respects and thought it was understood “by all hands the appellant and its rights thereunder, and concerned,” that “only one analysis should to secure to themselves all the fruits thereof, be made for the summer of 1901" (referring, as far as it had been performed, without of course, to the analysis of the coal for the requiring them to show that they had per school board); that he had an analysis ready formed, or were ready, able, and willing to by September 6, 1901; and that it took three perform, the contract in its several require or four days to make it, as he had a good ments on their part. This ignores important many analyses from the other departments, evidence in the case affecting the rights and and they had to take their turn. A brother obligations of the parties to the contract. of the appellees, an attorney, who representThe gravamen of the instruction granted at ed them in their dealings with the city, as the instance of the appellees, and the ground shown by his own and other evidence, testiupon which they based their rescission of the fied as follows: "The July payment under contract, consisted in the failure of the ap the contract which we had with the mayor pellant to pay "for the coal by them fur and city council under date June, 1901, we nished” to the appellant for account of the did not consider due until the 1st of Septemschool board “during the month of July, ber following." There is other testimony 1901, at any time in the month of August, that might be adverted to in this connection; 1901, and up to and until September 3, but what has been noticed is sufficient, with 1901.” The contract provided that payments the further fact that after the letter of the should be "made once a month by each de 2d of August, 1901, the appellees went on partment for all coal delivered to that de delivering coal under the contract, to show partment by the contract during the previous that they waived such right as they may have month," and should "be made on the basis had to rescind the contract because of the of what the coal” showed "on analysis." | analysis not being furnished in August. They The provision for an analysis of the coal treated the contract as still in force, holding was an important one to the city, not so the appellant bound by all the terms thereof, much in fixing the exact price of coal de and apparently intending on their part to livered, but in protecting the city against continue its performance, without any notice having supplied to it coal of inferior quali- of an intention to rescind or any act indity. The city, of course, could only act cating such intention until September 3, 1901. through its agents, and no agent would have The present suit was brought, and the rebeen justified in making payment for coal covery here sought was based, on the asdelivered until furnished with the analysis sumption of the contract being a subsisting stipulated for in the contract. The appel one up to that date. The appellant was entilees, of course, knew this, or must be held tled to have these facts submitted to the to have known it. It was the duty of the trying tribunal, and to the legal effect to flow city, however, to have the analysis in ev from them if they should be found. Bollman ery case furnished within reasonable time. v. Burt, 61 Md. 415; McGrath v. Gegner, 77

Md. 331, 26 Atl. 502, 39 Am. Rep. 415; Wag. lees were so notified. From what appears in gaman v. Nutt, 88 Md. 265-276, 41 Atl. 154. evidence, this was not an unreasonable delay On the 3d of September, 1901, upon the the. of the analysis of the quantity of coal that ory of a waiver by the appellees of an analy. was to be made the subject of analysis. The sis of coal during August, there were two instructions granted by the trial court at the reasons why the appellees were not entitled instance of the appellees, in ignoring the to rescind the contract. To entitle them to facts and considerations pertaining to а call upon the appellant for performance on waiver of analysis of coal delivered in July, its part on the penalty of a rescission of the and to the right of the appellees to rescind contract, in case of a neglect of strict per the contract on the 3d of September, 1901, formance, it was incumbent on them to show shut out the defense of the appellant raised that they had fully complied with the agree by its third plea, and which there was evi. ment on their part (Waggaman v. Nutt, 88 dence tending to support. In this, in my Md. 265, 267, 276, 41 Atl. 154), unless there judgment, there was error. I agree with the be some reason appearing which in law is a majority opinion as to the rulings made upon legal excuse for not performing. The con the prayers proposed by the appellant. tract here in question contained a stipulation, by reference to an accompanying table, that the appellees should deliver to the appellant

(96 Md. 520) for use of the school board something over

TAYLOR v. FORREST. 6,600 tons of coal, and that two-thirds of this

(Court of Appeals of Maryland. Feb. 11, 1903.) amount should be delivered during the

TAX SALE-REPORT BY COLLECTOR-DEED. months of July and August. The appellant

1. Under Code Pub. Loc. Laws Baltimore was not only entitled, by this stipulation, to

City, art. 4, § 832, providing that, where lands have this quantity of coal delivered, but also are sold for taxes, the collector shall report to have coal that would come up to the analy the sale, with the proceedings, to the circuit sis prescribed and provided for in the con

court, which shall examine them, and if they

appear regular, and the provisions of law in r... tract. It did not gratify the contract to have

spect hereto have been complied with, shail a part of the coal delivered and coming order the sale ratified and confirmed, the rewithin the analysis. The contract could only

port must be made by the collector who makes

the sale; otherwise the sale is void. be gratified by having all the coal delivered

2. Code Pub. Loc. Laws Baltimore City, art. and all coming up to the analysis. When on 4, § 834, providing that the collector shall, the 3d of September, 1901, the appellees at when required, if the property sold for taxes tempted to rescind the contract instead of

is not redeemed at the expiration of a year and

a day from the day of sale, execute a deed to having delivered two-thirds of the coal as

the purchaser, requires the deed to be made required, they had by their own showing de by the collector who made the sale. livered less than one-third. How could they

Appeal from Baltimore city court; J. Up complain of the absence of an analysis upon

shur Dennis, Judge. which payment for the coal was to be based

Action by Mary C. Taylor against Hattie when they had failed to deliver the coal of

V. Forrest. Judgment for defendant, and which the contract contemplated the analy

plaintiff appeals. Reversed. sis was to be made? There is no excuse at

Argued before McSHERRY, C. J., and tempted to be shown for nonperformance of

FOWLER, BRISCOE, BOYD, PAGE, the contract on their part by the appellees

PEARCE, SCHMUCKER, and JONES, JJ. other than that having reference to the absence of an analysis of the July delivery of

John V. L. Findlay and Thomas Mackencoal, which has already been considered.

zie, for appellant. Charles A. Briscoe, for But, even if there had have been perform appellee. ance by the appellees of the stipulation of the contract as to the quantity of coal to be BRISCOE, J. The plaintiff brought an delivered, there would still have been no action of ejectment against the defendant in sufficient legal justification for a rescinding the superior court of Baltimore city to reof the contract on the 3d of September, 1901. cover the reversion in a certain lot of ground, No definite fixed day was prescribed in the situate at the southeast corner of Trinity contract on or before which the analysis and Exeter streets, in the city of Baltimore. should be made ready. The obligation im- | The case was tried before the court, without posed in this regard, therefore, upon the the intervention of a jury, upon an agreed appellant was to have it ready in a reason statement of facts, which are fully set out able time, subject, of course, to the provision in the record. The judgment being in favor in the contract as to making payments for of the defendant, the plaintiff has appealed. coal. What is a reasonable time is a ques The title of the defendant rests upon a tax tion of law for the court. 2 Parsons on sale of the property in question, dated the Cont. 661; Ragan v. Gaither, 11 Gill & J. 17th day of December, 1895, and made by 472; Burroughs v. Langley, 10 Md. 248; Mis Lewis N. Hopkins, collector of taxes for Balpelhorn v. Farm. Fire Ins. Co., 53 Md. 473. timore city, for the years 1893 and 1894. The proof in the case shows that an analysis The property was purchased by Wm. E. of the coal in question was ready within one Croswell, the predecessor in title of the deweek from the end of August, and the appel fendant. The plaintiff's title is derived as

devisee of one Margaret J. Keys, who died vious, then, from an examination of the stat. on the 28th of December, 1900, and by her ute applicable to this case, that the report will, duly admitted to probate, devised the of sale, and the proceedings had in relation lot of ground, and the ground rent issuing thereto, by the collector who made the sale, thereout, to her sister, the appellant. The are essential requirements of the statute; plaintiff's title appears to be good and suffi and being conditions subsequent to the sale, cient, if the defendant derived no title to prescribed by the statute, no title will pass the property under the tax sale. The ques to the purchaser where the collector fails to tions of law are presented for our considera perform this duty. The manifest object and tion on the rulings of the court on the policy of the law in requiring a report of the prayers, and the controversy relates to the sale and the collector's proceedings is to regularity and validity of the proceedings enable the owner to ascertain the fact of under the tax sale.

sale, and to protect his interest by contestThe sale of the property, through which ing the validity of the sale, or by a redempthe defendant claims title, was made on the tion of the property within the period al17th of December, 1895, by Lewis N. Hop lowed by law. The proceedings, says Mr. kins, collector, for the nonpayment of state Blackwell, in his work on Tax Titles, vol. 1, and city taxes amounting to $68.50, due and sec. 644, is against the owner's will, in hosin arrear, for the years 1893 and 1894, by one tility to his rights, and for the purpose of Mary A. Forrest. The property was assessed subverting his title. There are no parties to at $1,900 in the name of Mary A. Forrest, the proceeding but the state, officer, and purwho at the date of the sale held only a life chaser. The officer is not his agent, and has estate; but it was sold by the collector, in no power to bind him, except so far as he fee simple, to the purchaser, for the sum of pursues the imperative provisions of the law. $135. The sale was on the 29th of Decem In the present case, it will be seen, while ber, 1896, reported to the circuit court of Mr. Hopkins, the collector, made the sale to Baltimore city by John F. Parlett, the then pay state and city taxes due and in arrear collector, and the successor of Mr. Hopkins, for the years 1893 and 1894, and payable and was subsequently, on the 14th day of by him as such collector, the report to the April, 1897, ratified and confirmed by the circuit court of Baltimore city was subsecourt. Now, the effect of an order of ratifi quently made, signed, and sworn to by John cation by the court is simply to establish a F. Parlett, his successor in office, and this prima facie case. The regularity of the pro report was not made until over a year after ceedings under the sale, and the title of the the sale. Was the report, then, as thus purchaser derived from the sale, can be at made, in this case, a compliance with the tacked, if the collector has failed to comply statute? If not, it is quite clear, the sale with the law. The collector's power to sell is void and a nullity, because the report of property for taxes is conferred by statute, sale is an essential condition precedent, reand the law is well settled that, in order to quired by the statute to be performed, and render a sale valid, there must be a substan à substantial prerequisite to the validity of tial compliance with the essential require the purchaser's title. The statute, it seems ments of the law from which this power is to us, can have but one meaning, and that derived. The statute provides (section 52 is that the report of the tax sale, and all of article 81 of the Code of Public General the proceedings in relation thereto, must be Laws, and section 832 of article 4 of the made by the collector who made the sale. Code of Public Local Laws of Baltimore The report should be made by the collector City) that in all cases where lands held in with all convenient speed after the sale, in fee simple, etc., have been sold or shall be order that the owner of the land, and others sold for payment of taxes in arrears, accord- in interest, may have information of the ing to the provisions of existing laws, it shall facts, so as to decide upon the right of rebe the duty of the collector of taxes to report demption or contest the validity of the prothe sale, together with all the proceedings ceedings. The law does not authorize the had in relation thereto, to the circuit court successor in office of a collector of taxes to of the county where said lands are situate, report the sale made by a predecessor in or, when lands are situate in Baltimore city, office; and in the absence of such statutory to the circuit court of the city. It is further authority and of law from which such a provided that the court to which such re power is derived, it is difficult to see how it port shall be made shall examine the pro can be exercised by him. Collectors of taxes, ceedings, and if the same appear to be reg. under our revenue laws, are statutory offi. ular, and the provisions of law in relation cers; and, their powers being derived from thereto have been complied with, and if, statute, the title of purchasers at tax sales after the notice required by the statute has is made dependent upon a compliance with been given, and no cause to the contrary has the law. In the case of Duvall v. Perkins, been shown, the sale shall, by order of court, 77 Md. 589, 26 Atl. 1085, it is said that, withbe ratified and confirmed, and on the pay out some express authority conferred by the ment of the purchase money, the purchaser legislature, a sheriff is powerless to complete shall have a good title to the property sold. an execution commenced by his predecessor, Baltimore City Code 1892, art. 50. It is ob and the successor of a collector has no great

er authority in this respect than the suc real estate of a testator was not chargeable cessor or a sheriff.

with the payment of pecuniary legacies, unless

a clear intention to the contrary appeared in But it is urged upon the part of counsel

the will, either by express words or by a fair for the appellee, in his supplemental brief, that and reasonable implication. it has been an established custom and usage 3. In a will made prior to the enactment of in the city of Baltimore for more than 25

Act 1894, c. 438, testator gave his property to

his wife during widowhood, with remainder years for the successor of a collector of tax

to his children, to be distributed equally among es to report sales of real estate made by his them, with the exception that the executor was predecessor in office. We fail to find any directed to pay before distribution two pewarrant in law, or any authority under the

cuniary legacies; one of them to a grandson, statutes applicable to Baltimore city, even under the will. The executor was not empow

out of the property due one of his daughters should it be conceded that such a custom ered to sell the real estate, nor were any di. bas prevailed in the city, that could sustain

rections given that it should be sold, and upon

the death of the widow it was divided by parsuch a practice. The statutes referred to by

tition. Held, that the real estate set off as the the appellee cannot, in our opinion, be so daughter's share in the partition proceedings construed.

was not chargeable with the legacy to the The second objection relates to the deed

graudson, which had not been paid by the ex

ecutor. executed to the purchaser. Mr. Parlett, clearly, had no authority to execute the deed in

Appeal from circuit court, Prince George's question. The statute (article 4, § 834, Pub

county, in equity; George C. Merrick, Judge. lic Local Laws of Baltimore City) provides

Bill by Jesse Ewell against Mary E MCthat the collector shall, when required, if Gregor and another. From an order sustainthe property so sold shall not be redeemed ing a demurrer to the bill and dismissing it, at the expiration of a year and a day from complainant appeals. Affirmed. the day of sale, and on payment of the full Argued before McSHERRY, C. J., and purchase money, execute a deed for the same

FOWLER, BOYD, PAGE, PEARCE, to the purchaser. This clearly means that the SCHMUCKER, and JONES, JJ. collector who made the sale must execute Wells & Wells and Robt. A. Hutchison, the deed, and, without legal authority, the for appellant. C. H. Stanley, J. K. Roberts. property cannot be conveyed by the suc and Alan Bowie, for appellees. cessor in office. There was no order of court in this case authorizing the execution of the MCSHERRY, C. J. The bill of complaint deed by the successor of the then collector. in this case was filed to enforce the payment Code, art. 81, § 58; Miller v. Williams, 15 of a legacy bequeathed by a certain NathanGrat. 213; article 50, $ 51, p. 1045, Baltimore

iel M. McGregor to his grandson Jesse Ewell. City Code 1892.

McGregor made his will in January, 1869, and Our conclusion, then, is, for the reasons died in the following year. By his will be stated, that the tax sale in question was void, gave all of his property of every kind and and the purchaser acquired no title to the description to his wife during widowhood, property so sold.

with remainder at her death to his children, The plaintiff's first prayer, which ruled "to be divided into six equal parts or proporthat, under the pleadings and evidence, the tions, and distributed among six children," plaintiff had shown such a title and right who were named, "share and share alike. of possession to the property described in with the following exceptions; that is to the declaration as entitled her to recover,

say: I desire that my executor hereinafter should have been granted. The defendant's named, before making the distribution hereprayer, which was the converse of the plain inbefore directed, shall pay unto my daughtiff's prayer, should have been rejected.

ter Susan E. McGregor, in addition to her said For the errors in rejecting the plaintiff's

property, the sum of six hundred dollars, to prayer and in granting the defendant's pray be deducted out of the property due my er, the judgment will be reversed, and a

daughter Mary Eliza, and also four hundred new trial awarded.

dollars out of the property so due my daughJudgment reversed and new trial awarded, ter Mary Eliza, unto my grandson Jesse with costs.

Ewell.” Roderick M. McGregor was appoint

ed executor, but was given no power to sell (96 Md. 357)

the real estate, and there is no direction that EWELL V. McGREGOR et al.

the realty should be sold by any one. In (Court of Appeals of Maryland. Jan. 22, 1903.)

1894 the widow of the testator died. ProWILLS-PECUNIARY LEGACIES-PAYMENT

ceedings were subsequently instituted for a CHARGE ON REAL ESTATE.

partition of the real estate of which the tes1. Act 1894, c. 438, providing that the real tator had been seised at the time of his death. estate of a testator, not specifically devised,

Commissioners were appointed to make the shall be charged with the payment of pecuniary legacies when the personalty is insuf

partition, and their report, wherein they ficient, unless a contrary intention clearly ap awarded a parcel of land designated "Lot pears, is, by its explicit terms, not applicable Number Five" to Mary Eliza McGregor, one to wills made before it went into effect. 2. Previous to the adoption of Act 1894, c.

of the daughters, was finally ratified by the 438, making real estate chargeable with pe

circuit court for Prince George's county. The cuniary legacies unless otherwise directed, the legacy of $100 to Jesse Ewell has never been

54 A.-8

paid, and it is alleged that there is no per by the will. Inasmuch as the legacy was to sonal estate of the testator with which to pay be paid by the executor, and to be paid by it. The bill of complaint charges that in him before he "divided" or "distributed" the these circumstances the legacy is a charge estate into six equal shares, it is obvious that and lien upon lot No. 5, so awarded to Mary the duty to pay was imposed upon him, and Eliza as her interest in her father's estate; not upon the daughter; and, whilst her share and the relief prayed against the executor was to be diminished by the amount of the and Mary Eliza McGregor is a sale of lot No. two pecuniary legacies, it was to the execu5 under a decree, so that out of the proceeds tor, and to no one else, that the legatees the legacy and accrued interest thereon may could look for payment. In the case of be paid. To this bill Mary Eliza McGregor White, Exr., v. Kauffman et al., 66 Md. 93, demurred. The court below sustained the 5 Atl. 865, this court had before it the ques. demurrer, and dismissed the bill. From that tion as to whether certain legacies were a order the pending appeal was taken.

charge on land devised. The terms of the The single question is this: Is the legacy will were not the same as those in the will of $100 a charge or lien upon the share of now before us, but a portion of the judgment the testator's estate devised to his daughter of the court is quite applicable here. On Mary Eliza, as that share has been partition the page above referred to it is said: “When ed and awarded to her? If the legacy was we look at the clauses of the will giving these not made by the will a charge or lien upon legacies, we see that the executor is directed the real estate of the testator, then no part to pay them out of the estate. No portion of that real estate can be sold for its pay of the real estate is devised to him, and conment, and consequently the portion acquired sequently the only portion of the estate over by the daughter would not be chargeable which he has any control is the personalty. with it. So the whole controversy resolves It would not be reasonable to construe the itself into the inquiry, is the legacy a charge will as requiring him to pay out of the realty upon the real estate devised? The will was when the same will has placed it beyond his made and became operative before Act 1894, reach. It seems to us, therefore, clear that, C. 438, was adopted. That act provides that if payment is to be made by the executor, it the real estate of a testator, not specifically must be made out of the personalty. If we devised, shall be charged with the payment now turn our attention to the clause devising of pecuniary legacies when the personal es the real estate, we find that it is given to the tate is insufficient to satisfy them, unless a devisee unconditionally. There is no direccontrary intention shall clearly appear. By tion or request or intimation that she sball the explicit terms of the statute the enact pay the legacies." Had the daughter Mary ment is not applicable to wills made before

it went into effect. It must, therefore, be legacy, an implication would have arisen that

laid out of view in considering the question the intention of the testator was to fasten now before us. How stood the law when the the legacy as a lien on the land devised to will spoke? In the absence of a clear inten her. Ogle v. Tayloe, 49 Md. 158. But there tion to charge a pecuniary legacy on real is no such duty imposed upon her, and in the estate, manifested either by express words condition in which the law stood when the or by a fair and reasonable implication, all will spoke the legacy was payable by the such legacies were payable only out of the executor only out of that part of the perpersonal estate which remained after the ex sonalty to which Mary Eliza was entitled, tinguishment of all debts. According to the. and, that failing, the legacy was lost. This terms of the will, the testator had both real is the conclusion which the lower court reachand personal estate at the time of his death, ed, and, as we concur therein, the order apand it is a verred in the amended bill of com pealed from will be aflirmed. plaint that the personal estate was inade Order affirmed, with costs. quate 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 inten

(96 Md. 584) tion to fasten this legacy on the land devised JOHNSTON et al. v. LIPPERT et al. to the daughter Mary Eliza, and unless that

(Court of Appeals of Maryland. Feb. 11, 1903.) intention be revealed in one or the other of

RECEIVERS-INJUNCTION-BILL OF COMPLAINT the two ways named, the appellant, Ewell, is

-ALLEGATIONS-SUFFICIENCY. without remedy. There is no direction in 1. A daughter of a decedent, who shortly bethe will to convert the real estate into mon

fore her death had distributed her property

among her three children by deeds, filed a biil ey, and consequently the share given to the

against the others which alleged that they, by daughter cannot be considered personalty. undue influence, when decedent was lacking in The executor was not empowered to sell the testamentary capacity, had obtained the deeds; land at all, and partition proceedings were

that the value of the property deeded to cach of

defendants exceeded that given complainant; resorted to for the purpose of dividing it. and that one of defendants, who was adıninisThe executor, and not the daughter, was trator, had refused to account to the orphans' directed to pay the legacy. And he was di

court for the property conveyed to defendants,

or to take steps to have the same set aside. rected to pay it "before making the distribu

A receiver was appointed, and an injunction tion" between the six children, as prescribed granted, restraining defendants from disposing

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