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this parcel of land by a deed which made Hoffman he possessed lot No. 4 and part of division of it between them with the excep lot No. 6. In February, 1848, George B. tion of lots 19, 20, and 21, and those the par Hoffman, son of the George Hoffman who ties still continued to hold in common. The died in 1834, purchased the fee to the entire three lots just mentioned had been subleased parcel; that is, to all the lots divided in the by George and Peter Hoffman to George deed of partition. On March 16th of the Addison at a rental of $75 per annum. In same year George B. Hoffman executed a the deed of partition of 1846 the rent of $75 deed of the same fee or reversion in all of reserved in lots 19, 20, and 21 was appro the parcel to the devisees of George Hoffpriated to the payment of the $56 rent man, deceased, reciting in the deed that he chargeable upon the whole parcel; and it had purchased the fee as their agent, they was distinctly provided in the deed that ha ving paid the purchase money. On March "said rent of seventy-five (75) dollars is to 20, 1857, the parties to the last-named deed be collected and applied to the payment of-they being the devisees of George Hoffthe original rent of fifty-six (56) dollars on man, the elder-executed a conveyance to the whole lot, and the balance divided among Lennox Birckhead, wherein they granted, the parties hereto agreeably to their inter bargained, sold, released, and conveyed to ests." By the will of Peter Hoffman it was the grantee, his heirs, executors, adminisprovided that his son, Samuel 0. Hoffman, trators, and assigns, "all their and each of and bis son-in-law, Lennox Birckhead, their interest in and right and title to the should choose out of the testator's portion of said yearly rent of fifty-six dollars, and to the entire parcel two lots of ground for each the property of which the said yearly rent of bis grandchildren living at the time of was reserved,

so that neither the his death, each lot to be not more than 20 parties grantor

nor the said Lenfeet front by from 75 to 100 feet deep; and nox Birckhead can claim payment of the the lots so chosen were directed to be held in said yearly rent of fifty-six dollars, or any trust by Samuel 0. Hoffman and Lennox part thereof, and so that the parties grantor Birckhead until the grandchildren became of

shall hold the property which passage, and upon the happening of that event ed to them in severalty under the said deed the lots were to be conveyed to them. Pur of partition in fee simple clear of the yearsuant to the direction contained in Peter ly rent of fifty-six dollars; and also that Hoffman's will, the devisees of the testator, the said Dr. Lennox Birckhead shall hold the on April 3, 1846, conveyed to Samuel 0. property conveyed to him by Samuel 0. Hoffman and Lennox Birckbead, trustees, Hoffman and others in fee simple, and clear ten lots of ground out of that half of the of said yearly rent of fifty-six dollars, or any whole parcel which had been partitioned off part thereof." No rent seems to have been to them three days before; and those ten demanded from or paid by the owners of the lots were to be held for the grandchildren lots which make up lot No. 4 for very many according to the terms of the will. Ei years. Samuel O. Hoffman and Lennox of those ten lots thus conveyed constitute Birckhead, the two trustees who held the lot No. 4 on the plat accompanying the par title to lot No. 4, having died without contition deed; the other two are in lot No. veying to the grandchildren of Peter Hoff6. Lot No. 4 is the one concerning the title man the parcels making up that lot, and to to which this controversy relates. Four which the latter were entitled upon arriving days later-that is, on April 7, 1846—the at age, proceedings were instituted in 18T2, devisees of Peter Hoffman conveyed to Len and a decree was passed appointing a trusnox Birckhead all the remaining portion of tee to make sale of the lots comprising lot the lots assigned to them by the deed of par No. 4. The lots were sold, and were contition, together with “all the undivided right, veyed in fee simple, and under mesne contitle, and claim of the said parties of the veyances from the purchasers the appellees first part in and to those three several lots claim title.

marked Nos. 19, 20, and 21, which From this outline of the chain of title were heretofore leased to George Addison by it is apparent that the subrent of $75 issuing George Hoffman and Peter Hoffman, re out of lots 19, 20, and 21 was set apart serving a rent of seventy-five dollars per by the owners of the leasehold estate to annum on the same and which were left un pay the original ground rent of $56, and this divided for the purpose of providing a fund appropriation was conclusive upon the parto pay the original ground rent of fifty-six ties to that deed, for the law is clearly setdollars, reserved on the whole property.” tled upon authority that a party is estopped Now, at the time last mentioned, namely, from denying a fact recited in his deed. April 7, 1846, Lennox Birckhead was pos Lloyd v. Burgess, 4 Gill, 192. No one claimsessed in his individual right of all the lots ing under or through those parties will be assigned to the devisees of Peter Hoffman allowed to question those recitals, or perby the deed of partition, except lot No. 4 mitted to impeach that apportionment. Con(the one in question here), and except part of sequently, as far as the leaseholders and all lot 6; and he held lots 19, 20 and 21 as ten persons claiming under them were or are ant in common with the devisees of George concerned, an effective apportionment was Hoffman; and as co-trustee with Samuel 0. made of the original rent of $56 upon lots

19, 20, and 21, and therefore the residue rent by virtue of the estoppel above advertof the property was exonerated therefrom. ed to, and therefore it became necessary Of course, however, no act of the leasehold. only to release the owner of those three ers could of itself bind the reversioner; but, lots if the rent was intended to be wholly when the lessee became the reversioner, the extinguished. When the owner of those lots estoppel arising from the recitals contained was released by the deed of 1857, the orig. in the grant which he made as lessee and inal rent was completely destroyed, and lot which bound him in the latter capacity, like No. 4 was then, if not before, held in fee. wise bound him as the owner of the rever As the title to lot No. 4 is a good and marsion; analogically, as a title acquired by a ketable one in fee simple, the decree of cirgrantor, after he has conveyed by warranty, cuit court No. 2 granting the relief prayed land to which he had no title, inures to the in the bill must be affirmed, and it is acgrantee by estoppel. Funk v. Newcomer et cordingly so ordered. al., 10 Md. 316. The deed of partition Decree affirmed, with costs. wherein the apportionment of the original rent was made was executed on April 1, 1816. In less than a year afterwards George

(97 Md. 207) B. Hoffman, one of the parties to that very BALTIMORE COUNTY COM’RS v. WILdeed, acquired the ground rent for and in

SON. behalf of, and subsequently conveyed it to,

(Court of Appeals of Maryland. Jan. 22, all of the devisees of George Hoffman, de

1903.) ceased, who were the identical parties to

ROADS-DEFECTS-PERSONAL INJURIES-DAMthe deed by which the apportionment was

AGES--COUNTY COMMISSIONERS

--LIABILITY. made. Now, as the leaseholders who made

1. The liability of county commissioners for the apportionment, which, by reason of the

damages resulting from the defective condition recitals in their deed they are forever estop of roads in their counties does not arise from ped to deny, subsequently acquired the fee, the common law, but solely by implication from they cannot be permitted to repudiate those

the provisions of Code Pub. Gen. Laws, art. 25,

$$ 1, 2, giving county commissioners charge of sa me recitals, or be allowed to assert a

and authority over roads within their respective claim directly at variance therewith. And counties. especially is this so in view of the fact that

2. Code Pub. Gen. Laws, art. 25, SS 1, 2, proin 1857, they, as owners of the reversion,

vide that the county commissioners of each

county shall have power to appoint road superdeliberately undertook to extinguish the visors, shall have charge of the property ownground rent; and in the deed designed to ac ed by the county and of roads and bridges, and complish that result they recited the appor

shall make such regulations for repairing and

perfecting the same as they may deem neces. tionment of the rent, and thus thereby as

sary, etc. Acts 1900, c. 685, 88 188-199, create sented to that apportionment.

a board of road commissioners, and provide genBut this is not all. The series of convey.

erally that they shall perform certain duties ances alluded to, and particularly the deed

relative to roads and bridges in the county;

and declares specifically in section 195 that of March 20, 1857, clearly indicate an in these road commissioners shall take charge of tention on the part of the owners of the fee all roads and bridges in their respective disto wholly extinguish the original ground

tricts, and shall see that no obstructious or inrent. When it is remembered that at the

jury is permitted on any road or bridge under

their supervision, etc. Held that, as the act of time the deed of 1857 was executed Lennox 1900 deprives the county commissioners of alBirckhead owned lots 19, 20, and 21 as ten most all of their authority relative to the couant in common with the owners of the fee,

struction, care, and repair of roads, it takes

away the basis of their liability for injuries reand that those three lots were, under the sulting from the defective condition of the roads, deed of partition, to bear the entire orig

Briscoe and Jones, JJ., dissenting. inal rent, and that he owned individually

Appeal from circuit court, Harford county; all the lots assigned under the deed of parti

James D. Waters, Judge. tion to the devisees of Peter Hoffman ex

Action by Hattie E. Wilson against the cept lot No. 4 and part of lot No. 6, which

county commissioners of Baltimore county. he and Samuel 0. Hoffman held as trustees

From a judginent for plaintiff, defendants apfor the grandchildren of Peter Hoffman, the

peal. Reversed. full significance and effect of the recitals

Argued before McSHERRY, C. J., and contained in, and the conveyance made by,

FOWLER, BRISCOE, BOYD, PEARCE, the deed of 1857, are manifest. It cannot

SCHMUCKER, and JONES, JJ. be disputed that this deed did completely extinguish the ground rent upon all the prop

Frank I. Duncan and Geo. L. Van Bibber, erty, unless the failure to name in the deed for appellants. John 1. Yellott and S. A. Samuel 0. Hoffman and Lennox Birckhead, Williams, for appellee. trustees, prevented the deed from applying to lot No. 4 and part of lot No. 6, then held SCHMUCKER, J. This appeal presents by them in the capacity just mentioned. the question of the liability of the county But no such effect can be given to that omis.

commissioners of Baltimore county, in the sion or failure. All the property, except | present state of the law, for personal inlots 19, 20, and 21, had already been ex

(L See Highways, vol. 25, Cent. Dig. $8 315, 504, onerater from the burden of the ground 507.

*

juries caused to travelers by obstructions im roads and the means and agencies with which
properly permitted to remain upon the county to enforce the control which have always
roads. There is evidence in the record tend been held to constitute the foundation of their
ing to show the following facts: Mrs. Hattie liability. In order to reach a solution of the
E. Wilson, the appellee, when traveling at question thus presented for our consideration,
night, with due care, on one of the county it becomes necessary to compare the provi-
roads of Baltimore county, was injured sions of the general and local laws pertinent,
through being thrown from her carriage, to the issue, that we may ascertain whether
which was overturned by running upon a rick there is a material conflict between them.
of stone about three feet high, placed upon Sections 1 and 2 of article 25 of the Code of
the side of the road, and extending into its Public General Laws contain the following
bed. The stone had been put there by Frank provisions:
Hurline, a neighboring farmer, with the per “Section 1. The county commissioners of
mission or assent of Christopher Hall, one each county in this state are declared to be a
of the county road commissioners, but with corporation and shall have full power to ap-
out the knowledge of the appellant. The ap-

point *
* road supervisors

* * and pellee sued the appellant in tort for damages all other officers, agents and servants required for her injury, and recovered a judgment for county purposes not otherwise provided in her favor, from which the present appeal for by law or by the constitution, and they was taken.

shall have charge of and control over the The record contains two exceptions, one of property owned by the county and over counwhich is to a ruling of the lower court upon ty roads and bridges, and whenever in their the admissibility of certain evidence, and the opinion the public interests require or will be other is to its action on the prayers. The thereby advanced they may commit the whole first exception was not insisted upon by the matter of grading and constructing public appellant, and the real issue arises under the roads, and the repairs thereof, and the consecond one. At the trial below, the appellee, struction and repairs of public bridges, to the as plaintiff, offered two prayers, both of charge of competent and scientifically educatwhich were granted, and defendant offered ed civil engineers, who shall direct and manseven prayers, all of which were rejected. age all such public works under the immediate The proposition of the plaintiff's first prayer control of said county commissioners, and who is that it was the duty of the county commis shall hold office for such time, with such sioners to keep the road so free from obstruc- salary, under such bond and subject to such tions that persons using reasonable care could regulations as may be directed by the said travel on it in safety; and that, if the rick county commissioners from time to time. of stone in question had, with the consent of the road commissioner, Hall, been put and “Sec. 2. That they shall also in their repermitted to remain for several weeks in such spective counties have control over all pubposition on the road as to make it unsafe for lic roads, streets and alleys, except in incor. one using ordinary care to travel the road porated towns, and make such rules and at night, and the plaintiff, while so traveling regulations for repairing, cleaning, mending: upon the road, was injured by her carriage and perfecting the same, and providing for coming in contact with the stones, she was the costs of the same, as they may deem necentitled to recover.

Her second prayer is up essary. on the measure of damages in the event of a It has been repeatedly held by this court verdict in her favor, and is in the usual that these sections of the general law not form, and free from objection. The defend. only conferred the power, but also imposed ant's first prayer asks the court to take the the duty, upon the county commissioners to case from the jury for want of legally suffi keep the public roads in a safe condition; cient evidence of negligence on the part of and that, as the law provided them with the defendant to entitle the plaintiff to re proper agents for the discharge of these

duties, and the power to levy the requisite . It is conceded that, if all of the provisions taxes for the repair of the roads, it made of the public general law regulating the pow them liable for injuries resulting from the ers and duties of county commissioners nonrepair of such roads or the existence ot throughout the state remain in force in Bal- dangerous obstructions upon them. Ducktimore county, the commissioners of that ett's Case, 20 Md. 468, 83 Am. Dec. 557; county are liable for personal injuries to trav Gibson's Case, 36 Md. 229; Baker's Case, elers on the public roads resulting from a 44 Md. 9; Eyler's Case, 49 Md. 269, 33 Am. failure to keep those roads in proper repair. Rep. 249; Duvall's Case, 54 Md. 354. It was The question is whether the local road law admitted in these cases that there was no now in force in that county, enacted by the sich liability at common law or by the exact of 1900 (chapter 685) is so inconsistent press terms of the statute, but it was held with the public general law in respect to the to have arisen by necessary implication from powers and duties of the county commission the powers and duties of the commissioners ers that the local law has superseded the gen under the several provisions of the general eral one, and taken away from these commis law. The local road law in force in Baltisioners that charge and control over county more county when the appellee was injured

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was enacted, as we have already said, by to levy annually on the assessable property in chapter 685 of the Acts of 1900. Its salient the county not less than 15 nor more than 25 features are as follows: Section 188 directs cents on the $100 for the use of the roads the county commissioners to appoint a board and bridges, of which only 5 per cent. shall of road commissioners for each district from be applied to the general use of the county the voters resident therein who have in the roads and bridges, and the balance shall be previous year paid taxes on property assessed set apart as a special road and bridge fund at at least $500, and requires the appointees for the use only of that district from which to give bond for the faithful discharge of it has been collected. their duties. Sections 188 and 190 require It is apparent from this synopsis of the the road commissioners to promptly organize act of 1900 that it not only introduces into as a board, and, with the advice of the the management of the public roads of Balroad engineer, adopt a system for the re timore county inany details of administration pairs and improvement of the roads in their not found in the general law, but it deprives respective districts. Section 191 requires the the county commissioners of almost the enroad commissioners to keep books, showing tire charge and control of the roads, and in detail the costs of the labor and material imposes that duty upon a new set of officials, used in the repair or improvement of each for whose appointment it makes provision. road in their respective districts. These It creates a board of road commissioners for books are to be open to the inspection of the each district, and requires them to “take road engineer, to whom the road commis charge of all roads and bridges in their resioners are required to make annual reports spective districts," and keep them free from of the condition of the roads and the nature hindrances and obstructions, to adopt a sysand extent of the work done on them during tem for repairing and improving them, and the year. Section 192 requires the road com to cause the repairs and improvements to be missioners of each district to make monthly made, and to purchase the materials requisite itemized statements of the labor and ma for that purpose. The road commissioners terial used by them to the road engineer, who receive a fixed salary, and are not made submust approve all bills for labor and materials ject to the control of the county commissionif correct, and deliver them to the county ers in connection with the repair or improvecommissioners, who, after the bills have been ment of the roads or the purchase of mateproperly audited, are required to direct their rials. On the contrary, the act directs them payment to an amount not exceeding the to report the condition of the roads and the special road tax collected from the district improvements made thereon to the road enfor that year. Section 194 authorizes the gineer, an independent official, appointed by county commissioners, upon charges made, the governor; and to make monthly state. and after notice and a hearing, to remove any ments of their expenditures for labor and road commissioner for neglect or refusal to material to the same official, to be by him perform his official duty, and also to fill va approved, if correct, and handed to the county cancies caused by resignation or removal of commissioners, who are then required to orroad commissioners. Section 195 provides, der their payment, after they have been propamong other things, that the road commis erly audited. The road engineer, and not the sioners "shall take charge of all roads and county commissioners, is made the adviser of bridges in their respective districts and shall

the road commissioners in the exercise of the see that no obstructions, hindrances or in charge conferred upon them by the act over jury is permitted upon any road or bridge all the county roads and bridges. The road under their supervision, and if any road or commissioners are, it is true, appointed by bridge under their supervision shall form the the county commissioners from a certain class boundary between districts the county com of taxpayers, and they may be removed for missioners shall assign to each district its neglect of duty by the county commissioners portion of said road or bridge." Section 196 after charges made and a hearing thereon; provides that “the governor shall appoint a but they do not act under the direction or Baltimore county roads engineer, who shall supervision of the county commissioners in hold office until removed by the governor or keeping the roads in safe condition, as the his successor for such good cause as he shall

charge and management of the roads is condeem sufficient." Section 197 prescribes the ferred by the local law upon the road comduties of the road engineer. These are main missioners themselves. Not only are the perly advisory in their nature, and to be ren sons directly charged with the care of the dered to the road commissioners to aid them roads thus made practically independent of in the management and repair of the roads; the county commissioners, but the power of but he is required to pass upon the propriety the latter to levy taxes for the use of the of the expenditures of the road commission roads is now so limited and restricted as, in ers, and to make an annual report to the effect, to deprive them of their former discounty commissioners and to the Maryland cretion as to the application of the funds Geological Survey of the condition of the raised by those taxes. As by this local law, roads, and the nature and cost of the im which prevails over the general law wherprovements made on them during the year. ever the two conflict, the county commissionSection 199 directs the county commissioners ers of Baltimore county have been shorn of

the very powers and duties which constituted the only ground of their liability for damages for injuries caused by the condition of the public roads, it follows as a matter of course that their liability for such damages no longer exists. If it be objected that the conclusion which we have reached as to the effect of this local road law deprives the users of roads in Baltimore county of that redress for injuries resulting from defects therein which is afforded to those using roads in other portions of the state, we are compelled to reply that the remedy for that situation must be sought at the hands of the legislature, and not of the courts.

The learned judge below should have rejected the plaintiff's prayers, and granted the defendant's first prayer; and for his error in not doing so the judgment must be reversed. As it is apparent that there is no liability on the part of the appellants for the, injuries sustained by the appellee, no new trial of the case will be awarded, and for that reason we find it unnecessary to review the remaining prayers of the defendant below.

Judgment reversed, with costs, without a new trial.

BRISCOE and JONES, JJ., dissenting.

(96 Md. 296)

OPPENHEIMER et al. v. LEVI. (Court of Appeals of Maryland. Jan. 16,

1903.) QUIETING TITLE-JURISDICTION-POSSESSION BY PLAINTIFF-LANDLORD AND

TENANT-TAX TITLE. 1. Where the lessee in a lease for 99 years, which provided that the lessee should pay certain rent and all taxes on the property, made a fictitious and fraudulent assignment of the lease to another, and then neglected to pay the taxes, and purchased the property at a tax sale, and thereafter took a reassignment of the lease, and, claiming to be owner of the property, refused to pay rent, suit may be maintained by the lessor to set aside such tax title and to quiet his title to the reversion, though he does not allege 'that he is in possession.

Appeal from circuit court, Baltimore county, in equity; David Fowler, Judge.

Action by Amanda Oppenheimer and husband against Jacob Levi to set aside a tax deed and quiet title. From a judgment for defendant, plaintiffs appeal. Reversed.

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

John Watson, Jr., for appellants. Grason & Bacon, for appellee.

assigns, to pay this rent and the taxes upon the lot. The leasehold estate therein, by deed of assignment made December 31, 1884, became vested in the appellee Jacob Levi, and his wife, Babet Levi, who, on February 16, 1887, assigned the same to Wm. H. Dryden. In 1890, the taxes for a previous year being in arrear, the fee in the premises was sold by the collector of Baltimore county to Jacob Levi, the appellee, to whom it was conveyed by said collector on January 23, 1891. This deed, however, was not placed upon record until June 13, 1896. Samuel Ellinger died July 6, 1891, and shortly thereafter his heirs conveyed to the appellant, Amanda Oppenheimer, the reversion in, and the ground rent issuing out of, said lot. On May 8, 1896, Levi united with Dryden in conveying to Henry Toner and wife a lot of ground designated as the lot described in the Ellinger lease, but which, through error, was made to embrace a lot but 50 feet square, instead of 50 feet by 150 feet, and this was conveyed “subject to the annual rent reserved in the original lease from Samuel Ellinger and wife to Lena Sachs. On December 21, 1900, Toner, whose wife in the meantime had died, conveyed the lot to Jacob Levi, the appellee, subject to the payment of said annual rent. Levi paid the annual rent from the time he acquired the leasehold estate, December 31, 1884, down to the time of the conveyance by himself and Dryden to Toner, May 8, 1896, and Toner paid the same from May 8, 1896, to December 21, 1900, when he assigned to Levi, who has refused to pay the subsequently accruing rent, claiming the fee by virtue of said tax sale and the subsequent assignment to him. Thereupon Amanda Oppenheimer and her husband, on January 15, 1901, filed a bill alleging all the facts above recited, and averring that the tax sale mentioned and the various subsequent conveyances constituted a cloud upon her title to the reversion and rent, for the removal of which she was entitled to relief in equity. The bill also alleges that at the time of this tax sale this lot was assessed to Jacob Levi, and had been so assessed for several years, and that the tax sale was void for several reasons, not necessary to enumerate here. The bill further charges that, notwithstanding the assignment from Levi to Dryden in February, 1887, Levi remained, and continued to be, the real owner of the leasehold, and that he paid the ground rent continuously from 1884 to 1896 to Samuel Ellinger and those claiming under him; that the lot was assessed up to the time of the tax sale to Levi, and that notice that the taxes were overdue, and that sale would be made if they were not paid, was served upon him, who was the real owner of the leasehold, and as such bound to pay said taxes; and then specifically charges "that by his fraudulent acts and concealments he encouraged, promoted, and procured the said sale with the intention of acquiring the fee-simple interest in said lot for the trivial

PEARCE, J. Samuel Ellinger and wife, in 1869, leased the lot of land now in controversy, situated in Baltimore county, to Lena Sachs, for 99 years, reserving to the said Ellinger and his heirs a yearly rent of $50, payable one half February 1st and the other half August 1st; and the lessee covenanted for herself, her personal representatives and

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