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it is grounded. The order of the court be Argued before McSHERRY, C. Ji, and low will be affirmed in No. 89 of these ap FOWLER, BOYN, PEARCE, SCHMUCKpeals, with costs. And, it appearing that the ER, and JONES, JJ. appellant has been removed as trustee, and having, therefore, no right to further inter

James Hewes, for appellant. Wm. Pinkfere in that capacity with the trust being ney Whyte, Olin Bryan, and Jas. W. Mcadministered in the court below, the appeal

Elroy, for appellee. in No. 90 will be dismissed upon the motion filed by the appellee.

PEARCE, J. This is an appeal by John In No. 89, order affirmed, with costs, and C. R. Gardner from a decree of the circuit in No. 90 appeal dismissed, with costs. court No. 2 of Baltimore city, passed May

21, 1902, in the case of the mayor and city

council of Baltimore against John C. R. (96 Md. 361)

Gardner and others. The bill was filed unGARDNER v. MAYOR, ETC., OF CITY OF | der the act of 1892, c. 165, now section 827 BALTIMORE.

of the new charter of Baltimore city, which

is as follows: "Whenever any property (Court of Appeals of Maryland. Jan. 15, 1903.)

shall have been condemned in any form of

proceeding for the use of the mayor and EMINENT DOMAIN-AWARD-DEPOSIT IN COURT -JURISDICTION-EQUITY-BILL-PAR

city council of Baltimore, and in conseTIES-APPEAL-EVIDENCE.

quence of infancy, insanity, absence from 1. Under Acts 1892, c. 165, now New Char- the city of any persons entitled to receive ter of Baltimore, $ 827, providing that when any money awarded in such proceeding, conproperty shall have been condemned for the ficting claims, refusal to accept, or any othcity, and in consequence of conflicting, claims, refusal to accept, or any other cause, the mon

er cause, such money cannot be reasonably ey cannot be safely paid to any person, the or safely paid to any person or persons, it mayor and city council may file a bill iv eqo | shall be lawful for the mayor and city counuity, and the court may decree that the mon

cil of Baltimore to file a bill or petition in ey be paid into court, the court has jurisdiction of a bill showing that defendant claimed any court of equity in the city or county that a tract owned by him and condemned ex where the property is condemned, or any tended into a street, and included a portion of portion thereof lies, and whenever such court such street which the city claimed, and that

shall be satisfied for any of the persons he refused to accept the sum awarded for so much of such tract as was not in the street. aforesaid that such money ought to be paid

2. A bill in equity filed with the single ob- into such court, it shall pass such decree ject of condemning lands for a street is not multifarious because all persons interested in

as it shall deem proper, and the payment any of the lands to be condemned are made

of any money into court under such a de. parties..

cree or order shall be considered in all re3. Where property claimed adversely by dif spects equivalent to a tender thereof to any ferent persons is condemned by a city for a street, the title to the property passes to the

person or persons entitled to such money, city; and an action to determine which of and who may be made a proper party to such claimants is entitled to the award there such proceeding." The original bill fled set for is not an action to determine title to land,

forth that under Ordinance No. 44, approved and may be prosecuted in equity. 4. A decree overruling a demurrer to a bill

April 4, 1892, land was condemned to open by the mayor and city council of Baltimore for Ensor street from Eager street to the south leave to deposit money in court in condemna side of Chase street, and that damages and tion proceedings is not reviewable on an appeal from a decree entered after answer and

benefits were awarded thereunder to the vabearing, under Code, art. 5, § 26, providing rious owners or alleged owners of the land that, on an appeal from a final decree, all pre condemned, and that, among these, damrious orders shall be open to revision, but can

ages were awarded to John C. R. Gardner be reviewed only on a direct appeal from such decree, under section 24, allowing an appeal

and Sarah R. Gardner, his wife, as joint from_auy final decree.

tenants, or to such persons as may be legal5. Evidence in an action to determine con ly entitled thereto, for the fee-simple interflicting claims to money awarded for condemnation of a tract of land for a street examined,

est in lot designated on the plat accompanyand held to justify a finding that a certain por

ing this opinion by the letter “J," in the tion of the tract had previously been dedicated sum of $2,801.33, less benefits assessed on as a street, and that defendant had no right

lot 44 on plat B, returned by the commisthereto.

sioners, in the sum of $223 (the net damages Appeal from the circuit court of Balti in their case being $2,578.33 for the feemore city; Pere L. Wickes, Judge.

simple interest in the lots aforesaid), but Bill by the mayor and city council of Bal. that in fact the said Gardner and wife were timore against John C. R. Gardner and oth not entitled to any allowance for that part ers for leave to pay into court money award of lot J wbich comprised the bed of Little ed for property condemned for the use of Ensor street, as shown on the plat accomthe city. From a decree granting the peti- panying this opinion, because the same was, tion, the defendant Gardner appeals. Af before said condemnation, a dedicated highfirmed.

way, and that said Gardner and wife bad,

by petition in the Baltimore city court, asked 2. See Emlade: Domain, vol. 18, Cent. Dig. $ 478. for a writ of mandamus to compel the then

)

city official known as the "Examiner of Ti (Judge Wickes being of opinion that the tles" to issue a certificate for the net amount suis of money mentioned in the original of said damages, which the said Baltimore and amended bill should, under section 827 city court refused to order. The bill fur of the new charter, be paid into court as ther alleged that said portion of lot J previ- prayed) passed a decree that said sums be ously dedicated as aforesaid was valued by paid into court, subject to its order, “in full the commissioners for opening streets at settlement and satisfaction of all claims and $1,193.33, and that the true and just amount demands of all parties against the said maydue said Gardner and wife under said con or and city council growing out of the condemnation was $1,385, arrived at as follows: demnation of said lots.

But it apTotal award

$2,801 33 pearing that there is a contention between Deduct benefits

$ 223 00

the mayor and city council and the said Deduct value of bed of Little En

Gardner and wife as to the actual ownership sor street dedicated..

.... 1,193 33

1,416 33 of a portion of the fee-simple estate in lot

J, * * it is adjudged, ordered, and deNet

$1,385 00

creed that the said net amount of $2,578.33 -And then tendered said Gardner and wife

awarded for the fee-simple interest in lot said sum of $1.385, wbich they refused. J shall await and abide the final adjudicaAnd the bill further alleged that they could tion of the said contention over lot J." This not reasonably or safely pay said award to

decree further appointed James W. McElroy said Gardner and wife. The prayer of the

trustee, to grant and convey to the mayor bill was that the net sum alleged to be due and city council all the lots condemned as Gardner and wife and the other parties to aforesaid, and such conveyance was accordthe bill, all of which have since been ad- ingly made. No appeal has ever been taken justed, be paid into court to the credit of

from this decree, which was passed Decemthe cause, and that the defendants answer ber 8, 1900, and is consequently, by lapse the bill and adjust their respective demands. of time, final and conclusive as to every

A few days later an amended bill was matter therein determined, provided the defiled, under leave of court, asking that the cree was within the jurisdiction of the court. whole amount awarded to Gardner and wife,

Barrick v. Horner, 78 Md. 253, 27 Atl. 1111, less benefits, viz., $2,578.33, be allowed to 44 Am. St. Rep. 283. be deposited in court. Gardner and wife de We do not doubt that the court bad full murred to the original and amended bill: jurisdiction to pass this decree. The alle(1) Because they alleged the bill did not gations in a bill determine the question of state a case within the operation of section jurisdiction, and the true test in all cases 827 of the new charter; (2) because the bill is whether a demurrer will lie to the bill. was multifarious, in making the other land- Tomlinson v. McKaig, 5 Gill, 276. The alowners mentioned parties to the cause; and legations of this bill state a case clear(3) because the bill did not state any case ly within the scope of section 827 of the entitling the plaintiff to relief in equity. new charter, and there can be no doubt of This demurrer was, after argument, overrul the power of the legislature to make that ed by Judge Wickes on December 8, 1900, enactment. The bill is not multifarious, and correctly, as we think, for reasons which since its object is the single one of making will hereafter appear.

the condemnation under the ordinance for Gardner and wife then answered the orig. opening Ensor street effective, and all of the inal and amended bill, admitting the con parties to the cause are interested in that demnation proceedings set forth in the bill, condemnation. The third ground stated in but denying that there had ever been any | the demurrer we understood from defend. dedication of that part of lot J comprising | ant's argument to mean that the cause is the bed of Little Ensor street, or that the one involving title to land, which, it is well commissioners for opening streets had ever settled, cannot be tried and determined in valued that part of said lot so dedicated at equity. But we think it is plain there is no $1,193, or at any other sum, and averring question of title to land in this case. that at the time of said condemnation they Under Ordinance No. 44, approved April had a fee-simple title to the whole of lot 4, 1892, the mayor and city council condemnJ, and filed as an exhibit a deed to them ed and opened Ensor street from Eager from Olivia Wolfe, dated February 23, 1889, street to the south side of Chase street, as embracing the whole of lot J within its lines. shown on the plat in this case, and awarded The answer also alleged that plaintiff was to Gardner and wife, as already stated, net estopped from disputing the title to lot J. damages of $2,578.33, upon the supposition and to the whole of the award. by article that they owned the whole of lot J. When 48 of the City Code of 1893, and that the this award was made, the city had no right decree prayed would operate as a taking of of appeal. Baltimore City Code 1893, art. their property without due process of law, 50, § 60. But no money could be paid on in violation of the fourteenth amendment account of any condemnation without a cerof the constitution of the United States. The tificate from the examiner of titles that the biil and answer were considered without tes person or persons claiming the payment of timony, and on December 8, 1900, the court any money therefrom are the owners of the

property for which such money was award mayor and city council, a brief review of the ud, and, when these proceedings were sub testimony will suffice to show the correctness mitted to the examiner of titles, he refused of that decree. Under an ordinance approv. to give such certificate to the Gardners, be ed October 8, 1857, the city commissioner cause, as he stated in his testimony, he dis was authorized and directed to condemn and covered that they did not owr that part of open Ensor street from Chase street to Harlot J which constituted the bed of Little ford avenue, as shown on the plat by the Ensor street. Thereupon the street commis letters A, B, C, D, E, F. The evidence sioners valued and assessed that part of lot shows that this was done at the earnest J (which, it will hereafter appear, had been solicitation of Marcus Wolfe, who was then previously condemned for the use of the the owner of lot J, and also of the adjoincity) at $1,193, and tendered the Gardners ing lot, marked "184" on the plat. His son the residue of the award made to them, viz., Alonzo Wolfe and his daughter Olivia Wolfe $1,385, which they refused to receive, and both testified to this fact. Olivia says her some time in 1898 filed a petition for a man father paved that part of lot J which condamus compelling Mr. Story, the examiner stituted the bed of Little Ensor street, and of titles, to certify that they were the own gave it to the city, in order to improve his ers of the whole of lot J, and were entitled property; and Alonzo says a deed was preto the whole of the award therefor, and also pared for this bed of the street to the mayor compelling Mr. Fenhagen, the city comptrol and city council, and he is sure his father ler, to pay that amount, but this was refused executed it. They both say the street, after by Judge Phelps; and thus the matter stood being paved, was always used as a street until this proceeding was instituted.

by the public, and that the city authorities Condemnation proceedings are proceedings put up a sign at the corner of Harford avein rem, and bind all persons interested in the nue and that street, bearing on it the words rem, even though not technically parties to “Ensor Street.” Marcus Wolfe died in 1875, the proceeding. All questions of title to the and by his will, made July 29, 1875, devised rem are transferred to the money awarded, to his daughter Olivia "my homestead, No. after a valid and final condemnation. Here 184, on the northwest side of Harford avethe city could not, under then existing law, nue,” without otherwise describing it. Wm. appeal, and the Gardners did not within the P. Price and wife, by deed of July 27, 1819, time allowed them for that purpose. This conveyed to Marcus Wolfe a lot on the northcase is therefore one of valid condemnation, west side of Harford avenue, the metes and and the question is no longer one of title bounds of which embraced lot 184, and also to land, but of title to money substituted for lot J, as shown on the plat, and nothing land. As stated by this court in Norris v. more. In 1857, as already stated, lot J was Mayor and City Council of Baltimore, 44 condemned, and was conveyed or given by Jd. 604, where the question was whether an Marcus Wolfe to the city, and from that assessment for damages carried interest from time, up to the condemnation of 1892, and its date, the condemnation proceeding might the institution of these proceedings, has conbe abandoned at any time before actual pay stituted part of the bed of Little Ensor street; ment of the amount assessed, “and until that and neither Marcus Wolfe, in his lifetime, time no title to the property condemned vests nor Olivia Wolfe, since his death, ever claimin the corporation.

But when this ed any ownership or interest therein. On sum is paid or tendered, the title vests." February 23, 1889, Olivia Wolfe sold and conWe are of opinion, therefore, the court had veyed to John C. R. Gardner and Sarah A. jurisdiction, and that the demurrer Gardner, his wife, a lot on the northwest side properly overruled. It was to just such a of Harford avenue, by metes and bounds, situation that section 827 of the new charter designating it as the same devised by Marcus applied, and the decree of December 8th, Wolfe “to my daugh er Olivia,

No. passed on the overruling of the demurrer, is 184, my homestead”; but this conveyance in full conformity with the provisions of followed the metes and bounds contained in that section. Nor is that decree open to re the deed from Price and wife to Marcus vision on this appeal. In Hopper v. Smyser, Wolfe, and thus embraced that part of lot 90 Md. 378, 45 Atl. 206, we held that a de J which had been condemned in 1857, and aree which exonerated certain lots of land

had since constituted a part of the bed of from sale under a certain mortgage until Little Ensor street. Olivia Wolfe testified the exhaustion of other mortgaged properties that the house on lot 184 fronted on Little was in the nature of a final decree, and not Ensor street, and that, after the condemnaopen for revision under section 26 of article tion and opening of that street, the home5 of the Code, but only upon appeal directly stead did not include any part of the bed therefrom under section 24 of article 5.

of that street. Gardner testified that, when Coming next to the consideration of the de he purchased the dwelling and lot from cree of May 21, 1902, passed by Judge Olivia Wolfe, she gave him the Price deed Wickes, awarding to Gardner and wife $1, "to go by," and that he had the property 335 (being the sum tendered them by the surveyed, and would not have purchased it mayor and city council), and awarding the "without getting the old deed,” and that residue of the whole award ($1,193) to the Olivia Wolfe told him if the street was ever

was

opened he would be paid for the street. Olivia Wolfe testified in rebuttal that the street was never mentioned by her to Gardner, and that she knew the homestead devised to her by her father did not include any part of lot J, and that when she executed the deed to the Gardners she did not know it included any part of lot J, and that she would not have attempted to sell what she knew she did not own, and, further, that she never knew until this controversy arose that he claimed to have purchased any portion of the bed of the street. Gardner testified on cross-examination that his father-in-law advised him to have Price's lines put in his deed, but it nowhere appears that Gardner informed her this had been done when the deed was presented for execution by her, and the fact that his father-in-law's advice led to the insertion of the Price lines is strong presumptive evidence that Gardner would otherwise not have inserted these lines, and that he understood lot No. 184 did not, in fact, embrace any part of lot J.

We find no error in the decree disposing of the fund before the court. Decree affirmed, with costs in this court to the appellee, but each party is to pay its respective costs below, as provided by the decree of the circuit court No. 2 of Baltimore city.

(96 Md. 399) BLACK V. FIRST NAT. BANK OF WEST

MINSTER. (Court of Appeals of Maryland. Jau, 22,

1903.) NOTES CONSIDERATION - CONTEMPORANE

OUS PAROL AGREEMENT - VIOLATION BY PAYED SUBSEQUENT HOLDERS -- KNOWLEDGE OF INFIRMITIES-CORPORATIONS-OF. FICERS - NEGOTIATION OF INSTRUMENTS AUTHORITY - ACTION ON NOTE - EVIDENCE

ADMISSIBILITY CROSS-EXAMINATION SCOPE.

1. Code, art. 13, $ 75, relative to negotiable instruments, provides that in order to constitute notice of an infirmity in an instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had knowledge of the defect. Held that, in an action on a note by an indorsee thereon, a plea interposed by the maker that the notes were procured by the fraud of the payee, and delivered to the plaintiff in breach of faith, was insufficient, for failing to charge that plaintiff took the notes with knowledge of the fraud or breach of faith.

2. Recovery by an indorsee of a note, as against the maker, could not be defeated by showing an agreement between the original parties that the same was not to be negotiated, whether the agreement was written or oral.

3. One to whom notes are delivered by the payee as collateral is presumed to be a holder for value.

4. Under the express provisions of Code, art. 13, § 77, relative to negotiable instruments, a holder under a holder in due course has all the latter's rights.

5. Under the express provisions of Code, art. 13, $ 48, the maker of an accommodation note is liable to a bona fide holder, notwithstanding such holder, at the time of taking the instrument, kuew him to be only an accommodation party.

6. Breach of an agreement which forms the consideration of a note is no defense against au indorsee who took the note for value before maturity, though he had knowledge of the contract, unless he was also informed of the breach.

7. Notes indorsed by the secretary and treasurer of a corporation were properly received in evidence as indorsed by the corporation, where it was shown that the corporation was accustomed to receive notes, checks, and drafts which were habitually indorsed by the secretary and treasurer under the same circumstances and in the manner that the votes in question were indorsed.

8. Where a demurrer to a plea has been properly sustained, the exclusion of facts alleged therein, when offered in evidence, is not prejudicial to defendant.

9. Notice to a director of a banking corporatiou privately, or acquired by him generally through channels open to all persons, and which he does not communicate to his associates in the management of the corporation, is not binding on the same. 10. Where, in an action on notes, it appeared that they had been pledged by the payee, and indorsed to plaintiff by the pledgee, and defendant, on direct examination of plaintiff's cashier, had inquired into the circumstances under which plaintiff took the notes sued on, it was proper, on cross-examination, to permit plaintiff to show wituess the note for which the notes sued on were pledged as security, and to admit the same in evidence.

11. On an issue whether a certain note had been discounted by a bank, it was error to admit a letter which accompanied the note when it was sent to the bank, and which tended to show that it had been discounted; the effect of such letter being to admit the unsworn statement of a third party.

12. Such error was harmless; the party claiming that the note was not discounted not having objected to the subsequent admission of another letter in answer to the former, which tended to show that the note had been discounted.

13. In au action on notes which had been pledged to secure certain other notes, and indorsed by the pledgee to plaintiff, it was proper to admit in rebuttal evidence as to what had been paid on the principal note.

14. The issue being whether the note sued on by plaintiff bank had been sold to plaintiff, by another bank, or merely discouuted, the passbooks of the maker with the first bank were properly admitted in evidence. 15. It was error to allow an employé of the first bank, who had not made any entries in the passbook, to state that he understood that the entries therein showed a discount; the inference to be drawn from the entries being for the jury.

16. The error was harmless, the entries them. selves tending to show the discount.

17. Iu an action by a banking corporation on a note, against the maker, it is no defense that the bank has no authority to purchase the note.

Appeal from circuit court, Carroll county; I. Thomas Jones, Judge.

Action by the First National Bank of Westminster against Levi Black. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before MeSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

9. See Banks and Banking, vol. 6, Cent. Dig. 48 285, 286.

Charles E. Fink, Roberts & Crouse, and Guy W. Steele, for appellant. John Milton Reifsnider and W. Burns Trundle, for appellee.

PEARCE, J. This suit was brought by the First National Bank of Westminster to recover from Levi Black the amount due upon two negotiable promissory notes, for $100 each, made by him, and payable to the order of the United Milk Producers' Association (now an insolvent corporation) in 6 and 12 months, respectively, from date. The declaration, which contains the common counts, and a special count upon each of said notes, alleges that they were indorsed to the plaintiff by the payee before its insolvency. The defendant pleaded "Never indebted as alleged," and "Never promised as alleged," and subsequently filed 10 additional pleas. The third denied that the plaintiff was a corporation as alleged, and this, on motion, was stricken out by the court, because the defendant, having failed in his previous pleading to deny plaintiff's incorporation, had thereby admitted it. There was no exception to this ruling, and none could have been sustained. The fourth and fifth pleas denied that the notes were indorsed as alleged. The sixth and seventh pleas denied that J. B. Councilman, the secretary and treasurer of the United Milk Producers' Association (which will hereafter, for brevity, be called the "Association"), and by whom the alleged indorsement was made, was the agent of the association to indorse said notes to the plaintiff, or that he had power and authority so to do. The eighth plea alleged that the notes were procured and negotiated by the fraud of said association. The ninth plea alleged that the notes were given to the association, and were deposited by it with the Old Town Bank of Baltimore, and by that bank were delivered to the plaintiff in breach of faith. The tenth plea alleged an agreement between the defendant and said association that these notes were to be deposited by it with the Old Town Bank of Baltimore as collateral security for advances to be made by it to said association, and that the Old Town Bank was to hold, and not to negotiate, the same, and that the plaintiff, well knowing these facts, received said notes from said bank. The eleventh plea alleged that said notes were executed and delivered for the accommodation of said association, under the agreement set forth in the tenth plea, and that the plaintiff took said notes, well knowing all these facts. The twelfth plea alleged that the defendant had subscribed to 400 shares of the capital stock of said association, upon condition that said association would take his milk and pay him for it, and, out of the amount thus due him at the end of each month, would deduct 5 per cent. of his said subscription, to be credited thereon, and that subsequently said association requested him to give to it three notes, cov

ering the amount then unpaid on said subscription, to be deposited with the Old Town Bank under the agreement stated in the tenth plea, and that he gave said notes, two of which are the same here sued on; that for four months this agreement was carried out, and then said association, without any fault on defendant's part, refused to receive his milk and pay him for it, or to credit any. thing upon his said subscription; and that the plaintiff took said notes well knowing all the terms and conditions of said agreement. The plaintiff joined issue on the 1st and 2d pleas, traversed the 4th, 5th, 6th, and 7th, and demurred to the 8th, 9th, 10th, 11th, and 12th pleas. This demurrer was sústained, whereupon issue was joined on all the pleas, and the case went to the jury, resulting in a verdict for the plaintiff for the amount due on the two notes. During the trial nine exceptions were taken to rulings on the evidence, and one to the ruling on the prayers.

The first question is presented by the ruling on the demurrer. As to the eighth and ninth pleas, there is no averment in either that the plaintiff took the notes with knowledge of the fraud charged in one, or of the breach of faith charged in the other, and there was therefore 10 error in the ruling as to these pleas. Banks V. McCosker, 82 Md. 518, 34 Atl. 539, 51 Am. St. Rep. 478, Code, art. 13, § 75. The tenth plea does not aver that the agreement set out therein was in writing. In McSherry v. Brooks, 46 Md. 118, prayers were rejected which sought to defeat recovery by an indorsee upon promissory notes because of an alleged parol promise by the payee to keep the notes in his possession and not pass them away; the court saying, “This would seem to be contrary to all principle and authority," and that it was not competent “to destroy their legal import and operation by the introduction of parol evidence that the notes were not to be negotiated, notwithstanding the negotiable terms employed on their face.” But it is not necessary, as was contended by the appellee, to allege in the declaration that the promise is in writing. If it appear in proof at the trial to be in writing, it is sufficient for its admission.' Ecker v. Bohn, 45 Md. 285; Horner v. Frazier, 65 Md. 1, 4 Atl. 133. But if in writing, that could not avail in this case, since this plea expressly alleges the execution and delivery of the notes by the defendant to the association, and section 43 of article 13 of the Code provides that every negotiable instrument is deemed, prima facie, to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party for value; and section 45 provides that, where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who become such prior to that time. But apart from these considerations, the plea states a case

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