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sum of $46, for which the same was sold; property subject to ground rent,-relief was

and that the payment by him of the granted notwithstanding the plaintiffs were purchase money at such tax sale was but not in possession; Judge Alvey saying: “They the payment of the taxes and expenses, are interested only in the annual ground rents which he was under obligation to pay.” The and in the estate of the reversion. They are prayer of the bill is: (1) That the tax sale not entitled to the possession, and could not, may be declared void; (2) that the deed from therefore, sue in ejectment for the recovery the collector may be declared void, and be of the property. Under the circumstances of vacated and annulled; (3) that a decree may this case, without resort to a proceeding like be passed declaring the appellant to be seised the present, the parties would be without adein fee of the reversion in said lot, and to be quate remedy for relief against the effect entitled to collect the rent reserved in the of the prima facie title in the purchaser." original lease from Ellinger. The appellee de In Textor v. Shipley, 77 Md., 26 Atl., 28 Atl., murred to the bill, and assigned the following supra, it was argued that the decision in grounds: (1) That the bill stated no suffi Steuart v. Meyer was in conflict with all the cient case to entitle the plaintiff to relief; other cases in this court on that subject, and (2) that the court had no jurisdiction to hear overruled the previous cases, but the opinion and determine the matter; (3) that the plain filed by Judge Robinson on the reargument in tiff's remedy, if any, was in a court of law; Textor v. Shipley, in which Judge Alvey con(4) that there was a full, complete, and ade curred, explained what were the circumstanquate remedy at law; (5) that the plaintiff ces alluded to by him in Steuart v. Meyer, bad neither the legal title to nor the posses and showed that in that case, when the bill sion of the property.

was filed, the property in controversy was At the hearing the court sustained the de in the possession of receivers appointed by murrer, and dismissed the bill, holding in the the court, and that the plaintiff could not opinion filed that, as there was no allegation resort to the ordinary remedy by ejectment of possession by the plaintiff at the time the against Meyer as a disseisor, for the reason bill was filed, the case was governed by the that he was not in possession of the property, case of Textor v. Shipley, 77 Md. 474, 26 Atl. and that in maintaining the jurisdiction of eq. 1019, 28 Atl. 1060, and those which preceded uity under the peculiar circumstances of that it, in all of which it is held that there must case it was not meant to question the general be such averment of possession, followed by rule laid down in the earlier cases; “that proof, to warrant a decree for plaintiff. those only who have a clear legal and equiThere can be no doubt that such is the gener table title to land, connected with the posal rule of equity, and that as such it is firm session, have any right to claim the interly established in this state by numerous deci ference of a court of equity to give them sions. In Helden v. Hellen, 80 Md. 621, 31 peace, or dissipate cloud on title.” There Atl. 506, 45 Am. St. Rep. 371, where a bill are decisions elsewhere from courts of repute tiled to remove a cloud upon the title failed to that actual possession by a tenant is equivaallege possession by the plaintiff, the bill was lent to actual possession by the landlord for dismissed on demurrer; the court saying: the purpose of such a bill, but these are not "If the possession is in another, the remedy consistent with the decision in Steuart V. is by an action of ejectment.

What Meyer, as explained in Textor v. Shipley, and ever may be the decisions elsewhere, no case need not be referred to. There are, however, in this state has gone so far as to maintain well-established legal principles applicable to a bill in equity under the facts and circum the facts of this case, which, in our opinion, stances of this case." And the rule was re take it out of the general rule, and bring it affirmed in Keys v. Forrest, 90 Md. 132, 45 within the exceptions in which equity has Atl. 22, the latest case upon the subject in jurisdiction. These principles cannot be betthis court. But, while this is the general ter stated than in the language of Judge rule, there are some recognized exceptions to Cooley, extracted from his Law on Taxation: its application. In Crook v. Brown, 11 Md. "Some persons, from their relation to the land 172, applying the general rule to the facts of or to the tax, are precluded from becoming that case, Judge Tuck said: "We know of no purchasers, on grounds which are apparent head of equity jurisdiction under which this when their relation to the property and to (amendment to the bill) can be maintained. the taxes is shown. The title to be given on It would be substantially to give to a chan a tax sale is a title based on the default of cery suit the effect of an action in ejectment. the person who owes to the public the duty

There are some circumstances under to pay the tax, and the sale is made by way which courts of equity will remove a party in of enforcing that duty. But one person may possession, and put in another, but these are owe the duty to the public, and another may cases of peculiar character.” So, in Living owe it to the owner of the land, by reason ston v. Hall, 73 Md. 395, 21 Atl. 49, Judge of contract, or other relations. Such a case Alvey said: “To maintain a suit of this char may exist where the land is occupied by a acter, it is, as a general rule, necessary that tenant, who, by his lease, bas obligated himthe plaintiff should be in the possession of self to pay the taxes. Where this is the the property.” And in Steuart v. Meyer, 54 relation of the parties to the land, it would Jd. 467,-a case arising under a tax sale of cause a shock to the moral sense if the law

were to perinit this tenant to neglect his duty, Ind. 351, 30 N. E. 210; Reily V. Lancaster, and then take advantage thereof to cut off 39 Cal. 354; Coxe v. Gibson, 27 Pa. 160, 67 his lessor's title by buying in the land at a Am. Dec. 454; Rothwell v. Dewees, 2 Black, tax sale.

There is a general princi- | 613, 17 L. Ed. 309; Lamborn v. Dickinson ple applicable to such cases, which may be County Commissioners, 97 U. S. 181, 24 L. stated thus: That a purchase made by one Ed. 926. whose duty it was to pay the taxes shall It is true that in an action of ejectment operate as a payment only. He shall acquire this plaintiff would be entitled to recover no right, as against a third party, by a neg. upon proof of the facts she alleges in her lect of the duty which he owed to such party. bill, but it does not follow that equity has This principle is universal, and is so entirely not jurisdiction to grant the relief prayed, reasonable and just as scarcely to need the and we think an examination of the authorisupport of authority. Show the existence of ties will show that it is our duty to sustain the duty, and the disqualification is made this bill, and not to send the plaintiff to a out in every instance.” A long list of cages court of law. In Hamilton v. Cummings, 1 illustrating the application of the principle Johns. Ch. 523, á bill was filed praying the thus stated under a great variety of circum delivery up and cancellation of certain bonds stances is given in a footnote to the text, and executed by the plaintiff's testator, which it a valuable note on the same subject will was charged were given to indemnify defendbe found upon page 939 of 53 L. R. A., ap ant as bail in certain suits, but which were pended to the case of Smith v. Newman to be surrendered and canceled if defendant (Kan.; 62 Pac. 1011), in which it is said that was not damaged or put to costs. The bill the cases are all agreed that a tenant cannot alleged that the suits were all settled, and acquire a valid title, as against the landlord, that defendant had been put to no costs or by virtue of a tax sale during the tenancy damage. In considering the objection made for taxes which the tenant had agreed to pay. to the jurisdiction of equity in that case, Among these may be cited the folowing: "At Chancellor Kent said: “I am inclined to most the tenant could only become seised un think that the weight of authority and the der the tax deed in trust for his landlord reason of the thing are equally in favor of if living; if dead, then for his heirs or their the jurisdiction of the court, whether the inassigns.” Burgett v. Taliaferro, 118 Ill. 516, strument is or is not void at law, and wheth9 N. E. 334. "Payment of taxes by a tenant er it be void from matter appearing on its at a tax sale will be considered as a redemp face, or from proof taken in the cause. tion of the land for his landlord, and he will

But while I assert the authority of remain his tenant as before.” Williamson v. the court to sustain such bills, I am not to Russell, 18 W. Va, 625. “In such case the be understood as encouraging applications, tenant can acquire no valid title as against where the fitness of the exercise of the power such owner, but would hold any title thus ac of the court is not pretty strongly displayed. quired in trust for such owner." Bertram v. Perhaps the cases may be reconciled on the Cook, 32 Mich. 519. “A tax purchase, made general principle that the exercise of this while such relation exists, is made in wrong; power is to be regulated by sound discretion, and the law, in circumvention of dishonesty, as the circumstances of the individual case will conclusively presume that it was made in may dictate; and that the resort to equity, in performance of duty, and not in repudiation order to be sustained, must be expedient, beof it." Conn. Mut. Life Ins. Co. v. Bulte, cause the defense, not arising on its face, 45 Mich. 120, 7 N. W. 707. “A title so ac may be difficult or uncertain at law, or from quired would remain void in the bands of a some other special circumstances peculiar to bona fide purchaser without notice." Blake the case, and rendering a resort here highly v. Howe, 1 Aikens, 306, 15 Am. Dec. 681. proper, and clear of any suspicion of any de"Where a lessee covenanted to pay all taxes sign to promote expense and litigation." In . and assessments on the demised premises Van Horne v. Fonda, 5 Johns. Ch. 406, two during the term, he was bound to pay a spe

devisees were in possession of lands under cial assessment for planking and curbing the an imperfect title devised to them by their sidewalk in front of the premises; and where common ancestor, and it was held that one of he disputed this liability, and permitted the these could not buy up an adverse title to lot to be sold to pay this assessment, and disseise or expel his co-tenant, but that such after the expiration of the term became the purchase would inure to their common bene. assignee of the purchaser, and took the tax fit, subject to an equal contribution to the deed, the lessor was held entitled to a judg expense; and the same high authority said: ment that the lessee quitclaim the premises "It is not consistent with good faith, nor to him, and that he be restrained from con with the duty which the connection of the veying or incumbering them.” Shepardson v. parties, as claimants of a common subject, Elmore, 19 Wis. 424. Some of these cases created, that one of them should be able, withwere actions of ejectment; others, and notably out the consent of the other, to buy in an outthe last cited, were bills to remove cloud standing title, and appropriate the whole subupon title. To the same effect are the cases ject to himself, and thus undermine and oust of Stout v. Merrill, 35 Iowa, 47; Haskell v. his companion. It would be immoral, and Putnam, 42 Me. 24; Willard v. Ames, 130 repugnant to a sense of refined and accurate

justice.” Accordingly, the chancellor sustained a bill for an account filed by the devi. see sought to be ousted under the adverse title bought by his co-devisee. That case was relied on as conclusive by Chancellor Cooper in Harrison v. Winston, 2 Tenn. Ch. 544, in which it was held that a beneficiary under a trust assignment for the benefit of creditors, who is a party to the suit for the execution of the trust, consenting thereto, and accepting its benefits, cannot acquire a title to any of the property under a tax sale free from the trust; and that one who joins with him in the purchase with knowledge of his fiduciary relations will stand in no better position; and that the complainant was entitled to a decree perpetually enjoining an action of ejectment brought by the purchaser of the tax title, and declaring that the tax title inured to the benefit of the trust.

Applying the principles thus declared to the case before us, we cannot say, as was said in Crook v. Brown, supra, "we know of no head of equity jurisdiction under which this can be maintained." We perceive at once that upon the allegations of the bill there was fraud in the acquisition by defendant of the tax title, and that, as a result of this fraud, the title is held by the defendant in trust for the plaintiff, and we know that fraud and trusts are independent heads of equity jurisdiction. In King v. Carpenter, 37 Mich. 366, it was held that, "where a party has an equitable cause of action against another, coming within any recognized rule of equity jurisdiction, such right can be enforced in equity, whether the complainant is in possession or not." In Sheppard v. Nixon, 43 N. J. Eq. 633, 13 Atl. 617, the court said: “The exception to the rule (that the plaintiff must be in possession) is where the case presents some special ground for equitable interposition, such as fraud, accident, or mistake, requiring the setting aside or reformation of deeds or instruments of conveyance.

If these ele ments be wanting, a bill to establish complainant's title is an ejectment suit, pure and simple.” To the same effect is Essex County Bank V. Harrison (N. J. Ch.) 40 Atl. 211. And in Security Savings & Trust Co. v. Mackenzie (Or.) 52 Pac. 1046, it was held that the question of possession of real estate, as required by a statute of the state, in a suit for an interest therein, was immaterial, when the relief sought is such that an equity court has jurisdiction independent of the statute. This view of the law is sustained in 17th Enc. of Pleading & Practice, 309, where it is said: “Where there is any other distinct head of equity jurisdiction sufficient to support the action, possession by the plaintiff is not required, but equity will retain the cause, and grant relief by quieting the title or removing clouds.” In the present case fraud in the acquisition of the title is distinctly charged; such fraud as would raise a trust in favor of the plaintiff. The defendant has demurred, and the effect of his demurrer is

to admit all matters of fact well pleaded, and we think the fraud is well pleaded. Again, in 17th Enc. of Pleading & Practice, 311, it is said that "it would seem that ejectment is an inadequate remedy in all cases where, although the plaintiff might recover possession, a void instrument or muniment of title would be left outstanding and uncanceled," and it was so beld in Redmond v. Packenham, 66 111. 434. Here, if the plaintiff were to recover in ejectment, the tax title would remain outstanding, and would, after such recovery, still constitute an apparent cloud upon the title whenever the property might be upon the market. Consequently, we think the demurrer should have been overruled and the bill retained.

Nothing that we have said, however, is to be understood as overruling or impairing the authority of any of the previous cases in this court, none of which presented the question now before us. In Keys v. Forrest, supra, the case was not presented on demurrer, but was heard upon bill, answer, and testimony. The bill alleged, and the answer denied, fraud in the acquisition of the tax title; and it will be seen on reference to the record that the lower court considered the allegation of fraud and found it was not sustained, and this court concurred in that finding. Had the possession by the plaintiff been essential in that case, it would have been idle to determine the question of fraud. There is therefore no conflict or inconsistency between this case and any of the earlier cases in this court, For the reasons given, the decree of the cir. cuit court will be reversed.

Decree reversed, with costs to the appellant above and below, and cause remanded for further proceedings.

(96 Md. 514) SNOOK V. MUNDAY. (Court of Appeals of Maryland. Jan. 23,

1903.) PRINCIPAL AND SURETY-ESTOPPEL-RIGHT OF SUBROGATION-TENDER-PLEADING

-AMENDMENT-APPEAL. 1. Under Code, art. 16, § 16, providing that a party to a bill in equity shall have the right, on payment of such costs as the court may direct, to amend so as to bring the merits fairly to trial, the application to amend is addressed to the discretion of the court, aud there is no appeal from an order permitting an amendment.

2. Where a wife, as surety for her husband, joined him in a mortgage which stated that "the debt is a joint and several one,” in an action praying leave to pay the debt and be subrogated to the rights of the mortgagee she may show that she was simply surety, though she could not do so to defeat the mortgage.

3. Where, in a suit by a surety to a debt secured by mortgage for leave to pay the debt and for subrogatiou to the rights of the mortgagee, the plaintiff alleges that she endeavored, but failed, to ascertain the exact amount due, and then paid into court a sum in excess of

1. See Appeal and Error, vol. 2, Cent. Dig. 88 582, 706.

the debt, interest, and costs, the tender was that the complainant cannot now set this sufficient.

up, because of the fact that by the terms Appeal from circuit court, Washington of the mortgage it is established that "the county, in equity; Edward Stake, Judge. debt is a joint and several one.” But this

Action by Elizabeth Munday against Cath is not a proceeding between the payors and erine Snook. From a judgment in favor of the holders of the note, nor is there any atplaintiff, defendant appeals. Affirmed. tempt to deny the liability of the appellee

Argued before MCSHERRY, C. J., and as a joint maker. The allegation of her FOWLER, BRISCOE, BOYD, PAGE, suretyship, only, is not made to alter or vary PEARCE, SCHMUCKER, and JONES, JJ. her liability to the payee, but solely for the

purpose of proving her relation to her coThompson A. Brown and Chas. A. Little,

maker. If, in fact, whatever may be the for appellant. Alexander Armstrong and

form of the transaction, as between herself Samuel B. Loose, for appelee.

and her co-maker she is a surety only, it

would be contrary to the principles of equiPAGE, J. John Munday, deceased, in his ty for the creditor to permit, or by his conlifetime, together with the appellee, executed duct to cause, her co-maker, the principal a mortgage upon certain lands to secure the debtor in fact, to be exempt from payment, payment of $1,600, evidenced by two prom or from liability to his surety to make good issory notes in favor of Edward Mealey. what the latter has paid on his account. The appellee, who, under the last will of This is an equity binding upon the conJohn Munday, is the life tenant of the mort science of the creditor, though not within gaged property, filed a bill in the circuit the actual words of the contract. All the court for Washington county praying for the rights of co-sureties inter sese rest upon this writ of injunction to restrain the appellant, principle. "Subrogation,” says Sheldon (page as assignee of the debt and mortgage, from 3), “as a matter of right, independently of making a sale, and for a decree requiring agreement, takes place for the benefit of a the appellant to receive from her, as the co-obligor or surety who has paid the debt surety of John Munday, the money due and which ought, in whole or in part, to have owing, so that she may stand in the place been made by another.” See, also, as to of the mortgagee, and be subrogated to all the basis of the right of contribution beof his legal and equitable rights. This bill tween sureties, Dering v. Earl of Winchelwas also demurred to by the appellant, the sea, 1 Cox, 318; Stirling v. Forrester (0. demurrer was overruled, and a decree pass S.) 3 Bligh, 590. When, therefore, the true ed allowing the relief prayed for, whereupon relations of co-makers of a note, inter sese, the appellant took this appeal.

are in issue, or, in plainer terms, where the One of the contentions in support of the question at issue is not the contract between demurrer made by the appellant is that the the makers and the payees, but the measure amended bill is not an amendment of the old of obligation between the makers, parol evione, but in fact a new bill, which the court dence establishing the, true relations between should not have permitted to be filed. But themselves does not vary the terms of the an application to amend is addressed to the contract as evidenced by the note, and may discretion of the court before whom it is therefore be offered in evidence. Mansfield made, and is not the subject of an appeal v. Edwards, 136 Mass. 15, 49 Am. Rep. 1; to this court. In Calvert v. Carter, 18 Md. Clapp v. Rice, 13 Gray, 403, 64 Am. Dec. 639; 108, where the court was considering the Sweet v. McAllister, 4 Allen, 355; Nurre v. effect of the act of 1854, c. 230, now article Chittenden, 56 Ind. 462; Melms v. Werde16, § 16, of the Code, it was said: “The | hoff, 14 Wis. 18; Carpenter v. King, 9 Metc. hest construction we have been able to give (Mass.) 511, 43 Am. Dec. 405; Barry v. Ranit is that it was intended to enlarge the time som, 12 N. Y. 462; Montgomery V. Page, within which the amendments may be made 29 Or. 320, 44 Pac. 689; Weston v. Chamberin proceedings in equity. Formerly the lin, 7 Cush. (Mass.) 404; Phillips v. Preston, 'proper time to apply for leave to amend 5 How. 278, 12 L. Ed. 152. This court also was before the cause was at issue. The has applied the same doctrine in Chapman act authorizes amendments to be made at v. Da vis, 4 Gill, 179,-an action of assumpsit any time before final decree. They are still brought by Davis, as executor, to recover to be made 'on application to the court,’ ‘so money paid by his decedent on account of a as to bring the merits of the case fairly to promissory note signed, as co-makers, by trial.' The court to which the application Chapman and Davis. The contention on the is made must of necessity judge of the pro part of the latter was that while his depriety of the proposed amendment.

cedent was apparently a joint obligor, he We think the act of 1854 must be construed was in fact a surety only for Chapman, and in the same way. It does not, in terms, con therefore, having paid part of the obligation, fer any right of appeal, and we think none he was entitled to recover it from the esexists.” The relief prayed for in the bill tate of Chapman, the principal. To estabis based upon the claim of the appellee that lish this relation toward each other, he ofshe is "simply" the surety of her husband. fered evidence that, at the time the note was An additional contention of the appellant is signed, both were members of the vestry

of Port Tobacco Church. On objection, the lower court rejected this evidence, but on appeal this court reversed the ruling; saying, as it did so, that “the fact proposed to be proved by the defendant was material to the issue, as the jury might have found from the position of Davis, as a member of the vestry, in connection with other testimony, that he intended to sign the note in question, not as the surety of Chapman, but as a principal obligor.” It seems to be clear that, if she is at liberty to prove by parol testimony that her true position as between herself and her co-maker was that of surety only, it was proper (indeed, in this case it was imperative upon her) to allege it in the bill. The demurrer admits the averment to be true, and therefore, being a surety, she is entitled to pay off the debt of her principal, and be subrogated to all the rights of the creditor. Freaner V. Yingling, 37 Md. 497.

With respect to the tender of the money due, we think the allegations of the bill are sufficient. It appears therefrom that the appellee sought, but failed, to ascertain the exact amount due. She then paid into court a sum more than sufficient to pay the debt, with all proper interest and costs. Chicora Co. v. Dunan, 91 Md. 144, 46 Atl. 347, 50 L. R. A. 401; Maughlin v. Perry & Warren, 35 Md. 358.

The order will be affirmed, with costs, and the cause remanded, that the defendant may answer. Order affirmed, with costs, and remanded.

ance of an investigation," and filed exceptions to the account. The account, as filed, contained some charges which should not have been allowed; but they amounted to but a few dollars, relating to the personal expenses of the ex. ecutor, and had no bearing on the validity of the will. It was further alleged that the petitiouers had learned, from letters written by one of the executors, of the exercise of undue influence by him, but the only letter relied on in support of this claim was one which was in possession of the caveators at the time the first petition was filed. Held not a sufficient explapation to justify the court in allowing petitioners to appear and contest the will in coutradiction of their first petition.

Appeal from orphans' court, Washington county; Elias Cost, A. D. Sager, and Wm. L. Hammond, Judges.

Petitions by Nancy E. Izer and others against V. Milton Reichard and another, as executors of the will of Margaret Shipley, deceased. From an order allowing petitioners to appear as contestants of the will, the executors appeal. Reversed.

Argued before MCSHERRY, C. J., and FOWLER, BRISCOE, BOYD,

PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

J. Clarence Lane, Henry H. Keedy, Jr., and M. L. Keedy, for appellants. Thompson A. Brown, John E. Wagaman, and Chas. D. Wagaman, for appellees.

(96 Md. 495)

REICHARD et al. v. IZER et al. (Court of Appeals of Maryland. Jan. 22, 1903.) WILL CONTEST-OPPOSITION TO CAVEAT-ES

TOPPEL-EXPLANATION-SUFFICIENCY. 1. Certain of testator's heirs filed a petition protesting against a caveat filed against the will by a brother and sister of petitioners, and alleged that they had peculiar means of knowl. edge of the circumstances attending the making of the will, and that all the allegations made against the validity of the will were untrue, to their personal knowledge. The petition prayed that the administration be continued by the executors, and that the petitioners be made parties caveatees.

The caveat was dismissed, and thereafter petitioners sought to contest the will on the same grounds alleged in the original caveat. In explanatiou of this action, they alleged that when they signed the original petition they were ignorant of the true facts surrounding the execution of the will, and signed the petition at the instance of the executors, and that, having taken their position with the caveatees, they were not in a position to ascertain facts which since came to their knowledge. It was alleged that one of the executors had stated that he knew the will could be set aside on the ground of fraud, but that it was better that the caveat should be dismissed, as a long litigation would have resulted; but it was not alleged when this statement was made, or to whom. It was also alleged that, after the signing of the first petition, one of the executors was required to produce vouchers for certain sums claimed by him, and that when he filed them the petitioners '"were aroused to the import

BOYD, J. The question before us in this case is whether or not the appellees have made such allegations in their amended petition and caveat as were necessary to avoid the effect of the papers signed by them, and referred to in Reichard et al. v. Izer et al., 95 Md. 451 (s. c. 52 Atl. 592). As is shown in that case, Wynkoop Shipley and Emma F. Davis, a brother and sister of Mrs. Izer, had filed a caveat to the will of their mother, Margaret Shipley, which included the same grounds, in substance, as are now relied on by the appellees. While that was pending in the orphans' court of Washington county, Mr. and Mrs. Izer, and others interested in the will, filed, on February 12, 1901, a petition in that court, which was there called, and will be herein referred to as, “Exhibit B," in which they alleged "that all the allegations made against the valid. ity of the said last will and testament, and codicil thereto, are untrue and unfounded in fact, and that the allegations therein made of undue influence, fraud, and misrepresentation, and alleged to have been exercised by V. Milton Reichard and Edwin J. Farber, executors named in said will, are false and without any foundation in fact; and your petitioners, on the contrary, further show and allege, from their knowledge of the circumstances and surroundings of their deceased mother, and from their intimate knowledge and acquaintance with the said Reichard and Farber, that all of said allegations in said caveat, so far as they reflect upon the character and conduct of the said Reichard and Farber, are unjust, untrue, and unfounded in fact." They then protest.

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