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Hoffman he possessed lot No. 4 and part of lot No. 6. In February, 1848, George B. Hoffman, son of the George Hoffman who died in 1834, purchased the fee to the entire parcel; that is, to all the lots divided in the deed of partition. On March 16th of the same year George B. Hoffman executed a deed of the same fee or reversion in all of the parcel to the devisees of George Hoffman, deceased, reciting in the deed that he had purchased the fee as their agent, they having paid the purchase money. On March 20, 1857, the parties to the last-named deed they being the devisees of George Hoffman, the elder-executed a conveyance to Lennox Birckhead, wherein they granted, bargained, sold, released, and conveyed to the grantee, his heirs, executors, administrators, and assigns, "all their and each of their interest in and right and title to the said yearly rent of fifty-six dollars, and to the property of which the said yearly rent was reserved,

parties grantor

so that neither the nor the said Len

this parcel of land by a deed which made division of it between them with the exception of lots 19, 20, and 21, and those the parties still continued to hold in common. The three lots just mentioned had been subleased by George and Peter Hoffman to George Addison at a rental of $75 per annum. In the deed of partition of 1846 the rent of $75 reserved in lots 19, 20, and 21 was appropriated to the payment of the $56 rent chargeable upon the whole parcel; and it was distinctly provided in the deed that "said rent of seventy-five (75) dollars is to be collected and applied to the payment of the original rent of fifty-six (56) dollars on the whole lot, and the balance divided among the parties hereto agreeably to their interests." By the will of Peter Hoffman it was provided that his son, Samuel O. Hoffman, and his son-in-law, Lennox Birckhead, should choose out of the testator's portion of the entire parcel two lots of ground for each of his grandchildren living at the time of his death, each lot to be not more than 20 feet front by from 75 to 100 feet deep; and the lots so chosen were directed to be held in trust by Samuel O. Hoffman and Lennox Birckhead until the grandchildren became of age, and upon the happening of that evented 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 O. property conveyed to him by Samuel O. Hoffman and Lennox Birckhead, 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. Eight 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 1872, 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 were heretofore leased to George Addison by George Hoffman and Peter Hoffman, reserving a rent of seventy-five dollars per annum on the same and which were left undivided for the purpose of providing a fund to pay the original ground rent of fifty-six dollars, reserved on the whole property." Now, at the time last mentioned, namely, April 7, 1846, Lennox Birckhead was possessed in his individual right of all the lots assigned to the devisees of Peter Hoffman by the deed of partition, except lot No. 4 (the one in question here), and except part of lot 6; and he held lots 19, 20 and 21 as tenant in common with the devisees of George Hoffman; and as co-trustee with Samuel O.

nox Birckhead can claim payment of the said yearly rent of fifty-six dollars, or any part thereof, and so that the parties grantor shall hold the property which pass

*

From this outline of the chain of title it is apparent that the subrent of $75 issuing out of lots 19, 20, and 21 was set apart by the owners of the leasehold estate to pay the original ground rent of $56, and this appropriation was conclusive upon the parties to that deed, for the law is clearly settled upon authority that a party is estopped from denying a fact recited in his deed. Lloyd v. Burgess, 4 Gill, 192. No one claim- . ing under or through those parties will be allowed to question those recitals, or permitted to impeach that apportionment. Consequently, as far as the leaseholders and all persons claiming under them were or are concerned, an effective apportionment was made of the original rent of $56 upon lots

19, 20, and 21, and therefore the residue of the property was exonerated therefrom. Of course, however, no act of the leaseholders could of itself bind the reversioner; but, when the lessee became the reversioner, the estoppel arising from the recitals contained in the grant which he made as lessee and which bound him in the latter capacity, likewise bound him as the owner of the reversion; analogically, as a title acquired by a grantor, after he has conveyed by warranty, land to which he had no title, inures to the grantee by estoppel. Funk v. Newcomer et al.. 10 Md. 316. The deed of partition wherein the apportionment of the original rent was made was executed on April 1, 1846. In less than a year afterwards George B. Hoffman, one of the parties to that very deed, acquired the ground rent for and in behalf of, and subsequently conveyed it to, all of the devisees of George Hoffman, deceased, who were the identical parties to the deed by which the apportionment was made. Now, as the leaseholders who made the apportionment, which, by reason of the recitals in their deed they are forever estopped to deny, subsequently acquired the fee, they cannot be permitted to repudiate those same recitals, or be allowed to assert a claim directly at variance therewith. And especially is this so in view of the fact that in 1857, they, as owners of the reversion, deliberately undertook to extinguish the ground rent; and in the deed designed to accomplish that result they recited the apportionment of the rent, and thus thereby assented to that apportionment.

But this is not all. The series of conveyances alluded to, and particularly the deed of March 20, 1857, clearly indicate an intention on the part of the owners of the fee to wholly extinguish the original ground rent. When it is remembered that at the time the deed of 1857 was executed Lennox Birckhead owned lots 19, 20, and 21 as tenant in common with the owners of the fee, and that those three lots were, under the deed of partition, to bear the entire original rent, and that he owned individually all the lots assigned under the deed of partition to the devisees of Peter Hoffman except lot No. 4 and part of lot No. 6, which he and Samuel O. Hoffman held as trustees for the grandchildren of Peter Hoffman, the full significance and effect of the recitals contained in, and the conveyance made by, the deed of 1857, are manifest. It cannot be disputed that this deed did completely extinguish the ground rent upon all the property, unless the failure to name in the deed Samuel O. Hoffman and Lennox Birckhead, trustees, prevented the deed from applying to lot No. 4 and part of lot No. 6, then held by them in the capacity just mentioned. But no such effect can be given to that omission or failure. All the property, except lots 19, 20, and 21, had already been exonerated from the burden of the ground

rent by virtue of the estoppel above adverted to, and therefore it became necessary only to release the owner of those three lots if the rent was intended to be wholly extinguished. When the owner of those lots was released by the deed of 1857, the original rent was completely destroyed, and lot No. 4 was then, if not before, held in fee. As the title to lot No. 4 is a good and marketable one in fee simple, the decree of circuit court No. 2 granting the relief prayed in the bill must be affirmed, and it is accordingly so ordered.

Decree affirmed, with costs.

(97 Md. 207) BALTIMORE COUNTY COM'RS v. WIL SON. Jan. 22,

(Court of Appeals of Maryland.

1903.)

ROADS-DEFECTS-PERSONAL INJURIES-DAMAGES-COUNTY COMMISSIONERS

-LIABILITY.

1. The liability of county commissioners for damages resulting from the defective condition of roads in their counties does not arise from the common law, but solely by implication from the provisions of Code Pub. Gen. Laws, art. 25, $$ 1, 2, giving county commissioners charge of and authority over roads within their respective counties.

2. Code Pub. Gen. Laws, art. 25, §§ 1, 2, provide that the county commissioners of each county shall have power to appoint road supervisors, shall have charge of the property owned by the county and of roads and bridges, and shall make such regulations for repairing and perfecting the same as they may deem necessary, etc. Acts 1900, c. 685, §§ 188-199, create a board of road commissioners, and provide generally that they shall perform certain duties relative to roads and bridges in the county; and declares specifically in section 195 that these road commissioners shall take charge of all roads and bridges in their respective districts, and shall see that no obstructions or injury is permitted on any road or bridge under their supervision, etc. Held that, as the act of 1900 deprives the county commissioners of almost all of their authority relative to the construction, care, and repair of roads, it takes away the basis of their liability for injuries resulting from the defective condition of the roads. Briscoe and Jones, JJ., dissenting.

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

Action by Hattie E. Wilson against the county commissioners of Baltimore county. From a judginent for plaintiff, defendants appeal. Reversed.

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

Frank I. Duncan and Geo. L. Van Bibber, for appellants. John I. Yellott and S. A. Williams, for appellee.

SCHMUCKER, J. This appeal presents the question of the liability of the county commissioners of Baltimore county, in the present state of the law, for personal in

507.

1. See Highways, vol. 25, Cent. Dig. §§ 315, 504,

juries caused to travelers by obstructions improperly permitted to remain upon the county roads. There is evidence in the record tending to show the following facts: Mrs. Hattie E. Wilson, the appellee, when traveling at night, with due care, on one of the county roads of Baltimore county, was injured through being thrown from her carriage, which was overturned by running upon a rick of stone about three feet high, placed upon the side of the road, and extending into its bed. The stone had been put there by Frank Hurline, a neighboring farmer, with the permission or assent of Christopher Hall, one of the county road commissioners, but without the knowledge of the appellant. The appellee sued the appellant in tort for damages for her injury, and recovered a judgment in her favor, from which the present appeal was taken.

The record contains two exceptions, one of which is to a ruling of the lower court upon the admissibility of certain evidence, and the other is to its action on the prayers. The first exception was not insisted upon by the appellant, and the real issue arises under the second one. At the trial below, the appellee, as plaintiff, offered two prayers, both of which were granted, and defendant offered seven prayers, all of which were rejected. The proposition of the plaintiff's first prayer is that it was the duty of the county commissioners to keep the road so free from obstructions that persons using reasonable care could travel on it in safety; and that, if the rick of stone in question had, with the consent of the road commissioner, Hall, been put and permitted to remain for several weeks in such position on the road as to make it unsafe for one using ordinary care to travel the road at night, and the plaintiff, while so traveling upon the road, was injured by her carriage coming in contact with the stones, she was entitled to recover. Her second prayer is upon the measure of damages in the event of a verdict in her favor, and is in the usual form, and free from objection. The defendant's first prayer asks the court to take the case from the jury for want of legally sufficient evidence of negligence on the part of the defendant to entitle the plaintiff to re

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It is conceded that, if all of the provisions of the public general law regulating the powers and duties of county commissioners throughout the state remain in force in Baltimore county, the commissioners of that county are liable for personal injuries to travelers on the public roads resulting from a failure to keep those roads in proper repair. The question is whether the local road law now in force in that county, enacted by the act of 1900 (chapter 685) is so inconsistent with the public general law in respect to the powers and duties of the county commissioners that the local law has superseded the general one, and taken away from these commissioners that charge and control over county

roads and the means and agencies with which to enforce the control which have always been held to constitute the foundation of their liability. In order to reach a solution of the question thus presented for our consideration, it becomes necessary to compare the provisions of the general and local laws pertinent. to the issue, that we may ascertain whether there is a material conflict between them. Sections 1 and 2 of article 25 of the Code of Public General Laws contain the following provisions:

"Section 1. The county commissioners of each county in this state are declared to be a corporation and shall have full power to appoint * * road supervisors * ** and all other officers, agents and servants required for county purposes not otherwise provided for by law or by the constitution, and they shall have charge of and control over the property owned by the county and over county roads and bridges, and whenever in their opinion the public interests require or will be thereby advanced they may commit the whole matter of grading and constructing public roads, and the repairs thereof, and the construction and repairs of public bridges, to the charge of competent and scientifically educated civil engineers, who shall direct and manage all such public works under the immediate control of said county commissioners, and who shall hold office for such time, with such salary, under such bond and subject to such regulations as may be directed by the said county commissioners from time to time.

"Sec. 2. That they shall also in their respective counties have control over all public roads, streets and alleys, except in incorporated towns, and make such rules and regulations for repairing, cleaning, mending · and perfecting the same, and providing for the costs of the same, as they may deem necessary.

It has been repeatedly held by this court that these sections of the general law not only conferred the power, but also imposed the duty, upon the county commissioners to keep the public roads in a safe condition; and that, as the law provided them with proper agents for the discharge of these duties, and the power to levy the requisite. taxes for the repair of the roads, it made them liable for injuries resulting from the nonrepair of such roads or the existence of dangerous obstructions upon them. Duckett's Case, 20 Md. 468, 83 Am. Dec. 557; Gibson's Case, 36 Md. 229; Baker's Case, 44 Md. 9; Eyler's Case, 49 Md. 269, 33 Am. Rep. 249; Duvall's Case, 54 Md. 354. It was admitted in these cases that there was no such liability at common law or by the express terms of the statute, but it was held to have arisen by necessary implication from the powers and duties of the commissioners under the several provisions of the general law. The local road law in force in Baltimore county when the appellee was injured

was enacted, as we have already said, by
chapter 685 of the Acts of 1900. Its salient
features are as follows: Section 188 directs
the county commissioners to appoint a board
of road commissioners for each district from
the voters resident therein who have in the
previous year paid taxes on property assessed
at at least $500, and requires the appointees
to give bond for the faithful discharge of
their duties. Sections 188 and 190 require
the road commissioners to promptly organize
as a board, and, with the advice of the
road engineer, adopt a system for the re-
pairs and improvement of the roads in their
respective districts. Section 191 requires the
road commissioners to keep books, showing
in detail the costs of the labor and material
used in the repair or improvement of each
road in their respective districts. These
books are to be open to the inspection of the
road engineer, to whom the road commis-
sioners are required to make annual reports
of the condition of the roads and the nature
and extent of the work done on them during
the year. Section 192 requires the road com-
missioners of each district to make monthly
itemized statements of the labor and ma-
terial used by them to the road engineer, who
must approve all bills for labor and materials |
if correct, and deliver them to the county
commissioners, who, after the bills have been
properly audited, are required to direct their
payment to an amount not exceeding the
special road tax collected from the district
for that year. Section 194 authorizes the
county commissioners, upon charges made,
and after notice and a hearing, to remove any
road commissioner for neglect or refusal to
perform his official duty, and also to fill va-
cancies caused by resignation or removal of
road commissioners. Section 195 provides,
among other things, that the road commis-
sioners "shall take charge of all roads and
bridges in their respective districts and shall
see that no obstructions, hindrances or in-
jury is permitted upon any road or bridge
under their supervision, and if any road or
bridge under their supervision shall form the
boundary between districts the county com-
missioners shall assign to each district its
portion of said road or bridge." Section 196
provides that "the governor shall appoint a
Baltimore county roads engineer, who shall
hold office until removed by the governor or
his successor for such good cause as he shall
deem sufficient." Section 197 prescribes the
duties of the road engineer. These are main-
ly advisory in their nature, and to be ren-
dered to the road commissioners to aid them
in the management and repair of the roads;
but he is required to pass upon the propriety
of the expenditures of the road commission-
ers, and to make an annual report to the
county commissioners and to the Maryland
Geological Survey of the condition of the
roads, and the nature and cost of the im-
provements made on them during the year.
Section 199 directs the county commissioners

to levy annually on the assessable property in the county not less than 15 nor more than 25 cents on the $100 for the use of the roads and bridges, of which only 5 per cent. shall be applied to the general use of the county roads and bridges, and the balance shall be set apart as a special road and bridge fund for the use only of that district from which it has been collected.

It is apparent from this synopsis of the act of 1900 that it not only introduces into the management of the public roads of Baltimore county many details of administration not found in the general law, but it deprives the county commissioners of almost the entire charge and control of the roads, and imposes that duty upon a new set of officials, for whose appointment it makes provision. It creates a board of road commissioners for each district, and requires them to "take charge of all roads and bridges in their respective districts," and keep them free from hindrances and obstructions, to adopt a system for repairing and improving them, and to cause the repairs and improvements to be made, and to purchase the materials requisite for that purpose. The road commissioners receive a fixed salary, and are not made subject to the control of the county commissioners in connection with the repair or improvement of the roads or the purchase of materials. On the contrary, the act directs them to report the condition of the roads and the improvements made thereon to the road engineer, an independent official, appointed by the governor; and to make monthly state ments of their expenditures for labor and material to the same official, to be by him approved, if correct, and handed to the county commissioners, who are then required to order their payment, after they have been properly audited. The road engineer, and not the county commissioners, is made the adviser of the road commissioners in the exercise of the charge conferred upon them by the act over all the county roads and bridges. The road commissioners are, it is true, appointed by the county commissioners from a certain class of taxpayers, and they may be removed for neglect of duty by the county commissioners after charges made and a hearing thereon; but they do not act under the direction or supervision of the county commissioners in keeping the roads in safe condition, as the charge and management of the roads is conferred by the local law upon the road commissioners themselves. Not only are the persons directly charged with the care of the roads thus made practically independent of the county commissioners, but the power of the latter to levy taxes for the use of the roads is now so limited and restricted as, in effect, to deprive them of their former discretion as to the application of the funds raised by those taxes. As by this local law, which prevails over the general law wherever the two conflict, the county commissioners of Baltimore county have been shorn of

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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,

QUIETING

1903.)

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, SCHMUCKER, JJ.

and

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

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

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

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