text:
    GEORGE T. BURROUGHS et al. v. FRANCIS J. GARNER et al. t/a Brandywine Farms Joint Venture
    [No. 1154,
    September Term, 1978.]

      Decided September 7, 1979.

      The cause was argued before Morton, Moore and Lowe, JJ.

      Jess Joseph Smith, Jr., for appellants.

      Leo William Dunn, Jr., with whom were Dunn & Emig, P.A. on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

This appeal involves the interpretation of several release of lien provisions contained in a “deferred purchase money” second deed of trust. We are asked to determine whether the trial court (David Gray Ross, J.) correctly ruled, in an equity proceeding in which a real estate foreclosure and an action to enjoin it were consolidated, that the appellees-mortgagors were entitled to the release of 29.8 acres out of a 147.8 acre tract pursuant to the terms of the second deed of trust.

I

In September 1971, the Brandywine Farms Joint Venture consisting of 11 members was formed pursuant to a written agreement for the purpose of acquiring and developing, for residential purposes, 147.8 acres of unimproved land in Prince George’s County. The purchase price of $406,654.60 was paid by the assumption of an existing first deed of trust in the sum of $97,089.60, a second deed of trust securing three separate notes aggregating $216,034.44, and cash in the sum of $93,530.56, plus assorted closing costs.

The second deed of trust dated September 24, 1971 was on a standard form generally in use in Prince George’s and Montgomery Counties and in the District of Columbia. In addition, several typewritten provisions were included to allow the orderly and periodic recording of subdivision plats and the release of parcels from the deed of trust lien. These provisions now stand at the heart of the controversy between the parties in light of the Joint Venture’s default in 1977 and its subsequent desire to have a portion of the property released from the deed of trust lien.

Before recounting the events leading up to this litigation, it is necessary that we set out the pertinent typewritten sections of the deed of trust. With respect to plats of subdivision and similar type instruments, the deed of trust imposed mandatory duties upon the trustees at the request of the Joint Venture:

1) That the Trustees hereunder, without further authority from the parties secured hereby, and without any fees or payments on account of said notes secured hereby, shall be authorized and required at the party of the first part’s request, at any time and from time to time, to join in the recording of and to execute consents and approvals with respect to plats of subdivision, street dedication plats or deeds, sanitary sewer, water, storm drainage, gas, electricity, telephone and other utility rights-of-way and easements, declarations of covenants, agreements and other similar-type instruments which may be required at any time and from time to time with respect to the orderly development of the property. (Emphasis added.)

Three separate typewritten paragraphs dictated the circumstances under which releases from the deed of trust lien could be obtained. Twenty-five acres were to be released from the deed of trust lien based upon the consideration provided by the cash payment at settlement. This twenty-five acre release was governed by the following provision:

4) The Trustees are authorized without further approval by the noteholders to execute one or more releases of the property conveyed herein at the request of the maker hereof or its successors and assigns, of 25 acres in one or more parcels upon the following conditions:
(a) Payment from the maker hereof or its successors or assigns to the party secured hereby of the sum of $10.00;
(b) Recordation among the Land Records of Prince George’s County, Maryland of a plat subdividing at least the amount of acreage which is to be released hereunder;
(c) That the property not released hereunder shall have an easement as wide as required by the subdivision requirements of Prince George’s County so that said property will not be landlocked. Said right of way may be either dedicated by record plat or granted in the release to be executed hereunder.

As part of the development plan, the deed of trust provided for additional acreage to be released “subsequent to the release of the twenty-five acres” described in the foregoing paragraph. It provided that upon the payment of “any and every” required installment of principal, “there shall be released from the lien of this Deed of Trust an amount of acreage computed at the rate of $2,750.00.” (Emphasis added.) If both interest and principal were paid in advance of the mandated schedule, then “anv of the land secured herein may be released . . . from time to time upon payment on account of the debt secured hereby of . . . $2,750.00 per acre.” (Emphasis added.)

No provision was made in the deed of trust instrument for the location of property to be released within the 147.8 acre tract except for a requirement that “all releases subsequent to the 25 acres to be released at no cost to the maker hereof shall be contiguous and adjacent to said 25 acre tract.”

Sometime in April 1972, the Joint Venture engaged the services of W. Stanley Machen, a professional surveyor of many years’ experience, to assist them in the work of subdivision and development. He subsequently drafted three successive preliminary plats of subdivision for portions of the property which were all given preliminary approval by the Maryland-National Capital Park & Planning Commission’s Prince George’s County Planning Board. Mr. Machen also prepared a final plat dated June 1,1978 encompassing 50.069 acres, to which reference is hereinafter made.

From the beginning the Joint Venture was unable to make the scheduled payments of interest and principal due under the second deed of trust. For the first two payments, due September 24, 1972 and 1973, respectively, the noteholders orally agreed to accept interest payments only. In October 1974, payments of principal were made on two of the three notes in the sum of $6,585 each, and interest was also paid on each of the two notes in the sum of $4,609.50. This, too, was done with the noteholders’ approval. In 1975, by further agreement with the noteholders, interest only was again accepted but the interest rate was increased to 9% and a payment in the sum of $5,233.85 was made on each of the two notes. The same payments were made in 1976. In 1977, however, no payments were made of either principal or interest; the Joint Venture also did not pay the property taxes for 1976-77 and 1977-78, which led to a tax sale on May 8, 1978.

On June 18, 1978, foreclosure proceedings were instituted in the Circuit Court for Prince George’s County by George T. Burroughs and Bessie Mae Cox, substitute trustees. The foreclosure sale was scheduled for July 6,1978. Prior thereto, on June 27, 1978, the Joint Venture filed a bill of complaint to enjoin the foreclosure and for additional relief, naming as defendants the two substitute trustees and Edward C. Freeman, Joint Venture Managing Committee member. The gravamen of the bill of complaint was that, in accordance with the provisions of the second deed of trust, the members of the Joint Venture were entitled to the release of 29.8 acres from the deed of trust about to be foreclosed. The 29.8 acres consisted of the 25 acres specified in paragraph 4 of the deed of trust to be released in consideration of the down payment, plus 4.8 acres on account of the principal payments made in 1974 prior to default.

It was also alleged in the bill that the advertisement for the sale of the property at public auction “includes all of the property described in the deed of trust,” and that the trustees had refused to release the portions to which the Joint Venture was entitled. The principal relief sought was not that the foreclosure sale be enjoined but that the substitute trustees release the 29.8 acres from the lien of the second deed of trust.

The cases came on for hearing on July 5, 1978, one day before the scheduled foreclosure sale. Prior to the close of proceedings on that day, the chancellor ordered a consolidation of the two cases pursuant to Rule 503. He stated:

“I will do that to give notice to any bona fide purchaser who may bid on this property tomorrow. I think it would be unfair to have someone come tomorrow and not know of these proceedings.”

At the sale the following day, the property was purchased for $200,000 by the parties secured under the second deed of trust. The chancellor continued the case from July 5 to July 18, 1978, when additional evidence was received, oral argument was heard, and the court delivered an oral opinion. Subject to the submission of written orders, the court denied the injunction and stated it would ratify the foreclosure sale subject to the release of the 29.8 acres.

The court also announced that the provision for an easement in accordance with paragraph 4(c) of the deed of trust, “so that [the remaining property] will not be landlocked,” remained to be dealt with and allowed the parties an opportunity to “work it out.” No such resolution of the matter eventuated, however. Indeed, on September 21, 1978, the chancellor signed an Order in the Joint Venture’s equity case that the substitute trustees (a) “join and execute that particular plat prepared by W. Stanley Machen, entitled, Section I Brandywine Farms...,” and (b) “execute a release, releasing from the lien in effect of the deed of [sic] trust 29.8 acres of land, said acreage to be described in the release and a copy of said release to be filed in these proceedings.”

The following day, the chancellor signed an order of ratification of the foreclosure sale “subject to the release of 29.8 acres in Equity E-4618.” A week later the substitute trustees and Edward C. Freeman filed a petition for reconsideration. A hearing on the petition was had in open court on October 19,1978, and an order of denial was entered the same day.

From these orders, the substitute trustees and Edward C. Freeman have appealed. They raise these issues: (a) Whether the deed of trust contained conditions precedent to the release of 29.8 acres and, if so, whether they were “in default or were waived”; (b) whether appellees are subject to equitable estoppel; (c) whether appellees are barred by laches; and (d) whether the lower court had jurisdiction.

II

Appellants contend, in effect, that there were both general and specific conditions precedent to the release of the 29.8 acres from the deed of trust and that these conditions remain unsatisfied. The general conditions include the standard deed of trust provisions requiring the mortgagors to keep current the payments of principal, interest, and taxes. The claimed special conditions were the conditions set forth in the typewritten section of the deed of trust: (1) payment of the sum of $10.00; (2) recordation of a plat subdividing the acreage to be released; and (3) the preparation of an easement protecting the remaining property from being landlocked. Appellants assert that both the appellees’ default and their failure to record a plat of subdivision bar them from any entitlement to a release.

Appellees, notwithstanding their default, claim a right under Leisure Campground v. Leisure Estates, 280 Md. 220, 372 A.2d 595 (1977) to a release of the acreage in question. They concede' the existence of the three specific conditions upon the execution of a release from the lien of the deed of trust but contend that the chancellor correctly found that the first was de minimis, that the second was waived, and that the third could be accomplished by appropriate language in the court’s order.

We begin with the Leisure case. There, the mortgagor in a purchase money mortgage transaction involving 154 acres near Ocean City appealed from an order ratifying a foreclosure sale of the property. It was contended that, under the terms of the mortgage, the mortgagor was entitled to the release of 40 acres in consideration of $75,000 paid at the time of settlement. The mortgagee contended that the mortgagor’s right to the release of the 40 acres was lost upon default under the mortgage, or, at all events, when foreclosure was initiated, and also that the release clause was unenforceable because it did not specify the location of the 40 acres. Vacating an order of the Circuit Court, the Court of Appeals held, in an opinion by Judge Digges, that the right to request the release “survived both default and foreclosure, and that the clause in question is enforceable — ” Id. at 222, 872 A.2d at 597. The following rule was enunciated:

“Consequently, we now hold that, absent a contractual provision to the contrary, if a mortgagor makes full payment for a partial release of property prior to a default, he is not prevented from enforcing his accrued rights under the clause so long as he is capable of doing so without interfering with any interest nonparty bona fide purchasers have acquired at a foreclosure sale.’’

Id. at 225, 372 A.2d at 598-99.

The Court, therefore, rejected the mortgagee’s primary contention that the mortgagor’s failure to request the release of the 40 acres until 3 days prior to the foreclosure sale divested it of its release right. Judge Digges stated:

“Therefore, the mortgagor’s default in this case did not extinguish its release right inasmuch as full payment was made prior to default, and there is nothing in the instrument indicating that the parties intended the right to be divested upon default or foreclosure.”

Id. at 226, 372 A.2d at 599.

There are striking parallels between the facts and circumstances in this case and those in Leisure. That the security device in the instant appeal is a deed of trust, rather than a mortgage, is not a point of distinction. In each case a deferred money purchase of unimproved acreage acquired for purposes of development by the mortgagor was involved. Default on the mortgage occurred in each instance. Similarly, no request for a release was pressed until after default and after the commencement of foreclosure proceedings. In our judgment, the rule of Leisure is controlling, for the following reasons:

(1) Brandywine Farms made full payment for the release of the 25 acres at the time of settlement in 1971 and of the 4.8 acres by payments toward principal in 1974, long before the default in 1977 and foreclosure in 1978.

(2) There are no provisions in the deed of trust which disallow release subsequent to default or the institution of foreclosure proceedings, nor is there anything in the record indicative of an intention to defeat vested rights of release.

(3) Release of the 25 acres was contemplated to take place in the future and such release or releases by the trustees were authorized “without further approval by the noteholder,” upon the conditions specified in the second deed of trust.

(4) Release of acreage in consideration of payments of principal was mandated by the provision that: “Upon payment of any and every required installment of principal, there shall be released from the lien of this Deed of Trust an amount of acreage computed at the rate of $2,750.” (Emphasis added.)

(5) The appellees’ request for the release after default but prior to the foreclosure sale did not interfere “with any interest nonparty bona fide purchasers have acquired at a foreclosure sale.” Leisure, id. at 225, 372 A. 2d at 598-99. One of the substitute trustees, Mr. Burroughs, announced at the sale that there was a pending suit involving the property, and, indeed, the purchasers at foreclosure were the noteholders themselves.

We are not unmindful that appellants, in an effort to avoid the impact of Leisure, contend that recordation of a subdivision plat and payment in full of the entire indebtedness upon default, preclude release after default in this case. Their position cannot be sustained. The requirement of recordation of a plat, which applies only to the 25 acres, is a condition precedent to the execution of a release by the trustees; recordation may occur prior to default or thereafter. The instrument does not require recordation prior 'to default. Again, the provision requiring payment in full of the entire indebtedness upon default is standard and was undoubtedly present in Leisure; it has no bearing upon the mortgagors’ right to request a release for which full payment was made prior to default.

We recognize that appellants’ claims stem in part from the chancellor’s determination that a condition precedent existed when he said:

“You have to come to grips with the question as to (4)(b), whether or not the recordation ahiong the Land Records is in fact a condition precedent.
Two, the release: I find it as a fact that it is a condition precedent, but at the same time that reasonable efforts have been made on the part of the petitioner in this case to put a plat on record, they have done everything they can. The failure of the trustees to sign that release [plat] amounts to a waiver of that condition, and therefore, while it isn’t [sic] a condition precedent, it has been waived.” (Emphasis added.)

It is apparent, however, that the above analysis was not appropriate for it failed to make a crucial distinction between a vested entitlement to a release under the principles of the Leisure case and mere conditions placed upon the formal execution of the release by the trustees. In our view, under the terms of the deed of trust, the appellees upon the payment of $93,530.56 at settlement obtained a vested right to have 25 acres released from the lien of the second deed of trust. The conditions expressed in the deed of trust were not conditions upon the appellees’ right to the release, but rather they were conditions precedent to the trustees’ execution of the release. Of course, the release of lien as to the additional 4.8 acres is not bound by the conditions at all, since the deed of trust separately provided for an absolute and mandatory release of acreage upon every payment of principal. The language of the deed of trust is clear, unequivocal, and free from ambiguity, and it places this case squarely within the holding of Leisure.

Appellants have also challenged the release provisions, asserting that the failure therein to describe and identify the property with sufficient certainty is a fatal flaw because “there are no facts in the instant case to suggest that the parties intended the mortgagor to select the acreage to be released.” We return, for the moment, to Judge Digges’ opinion in Leisure Campground v. Leisure Estates, 280 Md. 220, 372 A.2d 595 (1977), where the Court dealt with the failure of the release clause to specify the location of the 40 acres. The Court stated:

“While it is certain that the parties could have been more explicit, we believe the language of the release clause here — viewed in light of the fact that the mortgage was executed for the purpose of facilitating a land development venture to be undertaken exclusively by the mortgagor — clearly and unambiguously entitles the mortgagor to request and have released forty acres of its choice. Under these circumstances, it is inconceivable to us that, if the mortgagee or some third party was meant to have any control as to which parcel of land was to be selected for release, there would be no additional words intimating that intention.”

Id. at 227-8, 372 A.2d at 600.

And the Court made the additional observation that:

“It is clear that the provision before us giving the mortgagor the right to select enables the court, with the aid of a sufficient description provided by the mortgagor as to the acreage so selected, to determine with certainty what property the parties intended to cover in the clause — under these circumstances, the tract to be chosen by the mortgagor is the property intended by the parties. See Lambert v. Jones, 540 S.W.2d 256, 259 (Tenn. App.), cert. denied, Tenn. Sup. Ct. (1976). We conclude that where, as in the present case, the parties evidence an intent that the mortgagor is to select the land, such an agreement will not be unenforceable merely because there is not a metes and bounds description of the portion to be released. It would be wholly unreasonable, and would greatly reduce or destroy the efficacy of partial release clauses, to require such specificity at the time the parties make the mortgage contract.”

Id. at 229-30, 372 A.2d at 601.

In the instant appeal, the second deed of trust evidences an intention by the parties to the transaction that the Joint Venture would direct the residential development of the 147.8 acre tract. While the trustees were required to give their consent and approval to plats of subdivision and other similar instruments prepared by the Joint Venture under the terms of the second deed of trust, they had no official role in the preparation of subdivision plans. We believe that all of the circumstances presented in this case indicate that the Joint Venture, as the owner and developer of the Brandywine Farms tract, was to develop the tract as it best saw fit. There is no language in the second deed of trust indicative of an intention to allow the trustees or noteholders any input into the selection of property to be released, and therefore, the power to select such acreage must be vested in the Joint Venture.

Ill

Appellants’ remaining assignments of error raise the doctrine of equitable estoppel and laches as a bar to the relief prayed by the appellees. A jurisdictional defect is also asserted — that all of the members of the Joint Venture were necessary parties plaintiff to their bill of complaint but only two were named.

Equitable estoppel has no application to the facts and circumstances involved in this appeal. As Judge Barnes stated for the Court of Appeals in Savonis v. Burke, 241 Md. 316, 216 A.2d 521 (1966), cited by appellants, the doctrine operates “to prevent a party from asserting his rights where it would be inequitable and unconscionable to assert those rights.” Id. at 319, 216 A.2d at 523. The Court went on to say:

“... It is essential for the application of the doctrine of equitable estoppel that the party claiming the benefit of the estoppel must have been misled to his injury and changed his position for the worse, having believed and relied on the representations of the party sought to be estopped.”

Id. at 319, 216 A.2d at 523. Appellants’ claim to equitable estoppel, as stated in their brief is as follows:

“Without any long or involved discussion, [by not] paying the principal and interest when due, by not requesting any trustee to sign any plat or release before instituting suit, and by letting the property be purchased by a third party at a tax sale, the Appellees are barred by equitable estoppel from asserting their rights to the release of any property described in the deed of trust in question.”

It is patent that the elements of equitable estoppel are not here present; nor is there any indication that appellants suffer from inequity or unconscionability.

As for the claim of laches, the Court of Appeals has had occasion to state that this doctrine “is an application of the general principles of estoppel.” Oak Lawn Cemetery v. Baltimore County, 174 Md. 280, 291, 198 A. 600, 605 (1938). The Court has also defined laches as “inexcusable delay, without necessary reference to duration” in the assertion of a right. Lipsitz v. Parr, 164 Md. 222, 226, 164 A. 743, 745 (1933). Change of position and prejudice from the delay must be shown. Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 63, 300 A.2d 367, 385 (1973).

With particular reference to the assertion of a right to partial release of property from the lien of a mortgage, the Court observed in Leisure Campground v. Leisure Estates, 280 Md. 220, 225, n. 3, 372 A.2d 595, 599, n. 3 (1977):

“Of course, should a mortgagor inexcusably delay the assertion of his right, such a delay might constitute laches. The defense cannot successfully be ráised here, however, since the mortgagee has shown no prejudice or disadvantage arising out of the mortgagor’s delay in seeking enforcement of the release provision. See, e.g., Anne Arundel Co. Bar Ass’n v. Collins, 272 Md. 578, 584, 325 A.2d 724, 728 (1974); Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 63, 300 A.2d 367, 385 (1973).”

In Leisure, the mortgage was executed on August 4, 1972, and the mortgagor paid accumulated interest until February 1974 but made no subsequent payments of interest or principal. Foreclosure proceedings were instituted on June 4, 1975. On July 17, three days before the sale, the mortgagor for the first time requested the release of the 40 acres paid for at settlement, without specifying their location.

In the instant appeal, as in Leisure, the request for the release was made after .default but prior to the foreclosure sale. The precise time of the request is not clearly established in the record; however, the Joint Venture’s bill of complaint filed on June 27, 1978 clearly constituted a demand for the release. In addition, there was testimony before the chancellor leading him to conclude that, prior to the commencement of the foreclosure proceedings, the appellants refused to sign a record plat, the recordation of which was a condition to the execution by the trustees of the release.

We do not believe there was evidence below of “inexcusable delay” in the assertion of the right. The Joint Venture timely engaged an experienced professional surveyor; beginning in April 1972 he worked with Mr. Freeman and Mr. Satterfield of the Joint Venture in the preparation of plats of subdivision. At least three preliminary plats were prepared and approvals obtained from state and local agencies. A zoning map amendment, the surveyor testified, of the Patuxent-Upper Marlboro section of Prince George’s County affected the zoning of the property and caused the undoing of the second preliminary plat. A record plat was finally prepared in accordance with a third preliminary plan, affecting 50.069 acres, and was approved by the agencies involved. According to the surveyor, Mr. Machen, the only additional requirements for the final approval by the Maryland-National Capital Park and Planning Commission of the record plat, which bore a date of June 1, 1978, were: (a) the execution thereon of consents by the trustees and by the appropriate representatives of the Joint Venture, and (b) the posting of a bond for the construction of the road. The foregoing, in our judgment, discloses that a significant amount of time, and presumably of expense, was invested by the Joint Venture in land planning and amply supports the finding of the chancellor that “reasonable efforts have been made on the part of the petitioner in this case to put a plat on record,” a necessary condition to the execution of a release by the trustees.

Furthermore, appellants have failed to sustain their burden of showing prejudice caused by appellees’ assertion of the right to the release. Their references to nonpayment of taxes, cessation of payments of principal and interest, and the costs of foreclosure are relevant, of course, to appellees’ default under the mortgage, but do not establish “change of position and prejudice” in connection with the request for the release. We conclude, therefore, that appellants’ claim under the doctrine of laches must fail.

Appellants’ final contention, that all of the members of the Joint Venture were necessary parties in the equity suit on behalf of the Joint Venture, must also be rejected. The action was brought on behalf of the Joint Venture by Robert J. Garner and Francis J. Garner, as “Managing Joint Venturers.” Joined as parties-defendant were the two substitute trustees, George T. Burroughs and Bessie M. Cox, as well as Edward C. Freeman, also designated as a Managing Joint Venturer of Brandywine Farms, presumably named because of his admitted refusal to sign the record plat.

The Joint Venture agreement, received in evidence, provided specifically for the appointment of a Managing Committee to act on behalf of the Joint Venture. Paragraph 4 provided:

“The joint venturers hereby appoint a committee of three joint venturers who shall be Robert J. Garner, Francis J. Garner and Edward C. Freeman, to do any and all acts and enter into and execute any and all agreements or other instruments necessary, proper or expedient in its judgment, to carry out and perform this Agreement and generally to transact the business of the venture in such manner as in its discretion it may deem for the best interests of the venture. The committee shall have a chairman and shall act by majority vote. ” (Emphasis added.)

The agreement thus contained a broad delegation of authority to the three members of the Managing Committee; and the specific provision that the Committee act by a majority vote clearly conferred upon Robert and Francis Garner the authority to prosecute an action to assert the Joint Venture’s entitlement to the release of the 29.8 acres. Contrary to the suggestion made in appellants’ brief, the equity proceeding which appellees initiated was not akin to a foreclosure action and the authorities cited by the appellants are inapposite.

IV

Although we hold that the chancellor properly recognized the right of the Joint Venture to a release of 29.8 acres from the lien of the deed of trust, we also perceive that not all issues have been decided and that further proceedings are necessary in order to award complete relief and to avoid circuity of action. Aiello v. Aiello, 268 Md. 513, 518, 302 A.2d 189, 191 (1973).

Specifically, we observe: 1) that the 50.069 acre plat which the court ordered the trustees to sign consists of 10 parcels ranging in size from 3 acres to 6.81 acres and that the 29.8 acres to be released are not delineated; 2) that the preparation of an easement to protect the remaining acreage from being landlocked has not been accomplished; and 3) that the chancellor did not address himself to the question of the payment of taxes on the property to be released from the deed of trust, as appellants’ brief validly complains.

Here, too, the proper course to follow has been shown by the Leisure case. There, the Court noted that the mortgagor had agreed to submit its choice of the acreage to be released for approval by the trial court. Judge Digges then stated:

“... Therefore, to effectuate this restricted right, the order of ratification of the entire 154 acres must be vacated, and on remand, upon submission by the mortgagor of its request, the chancellor should determine whether the selection is equitable under the circumstances of this case. If it concludes that the choice is reasonable, the court should order those forty acres released from the mortgage lien, and thereupon enter an order ratifying sale of the remaining 114 acres to the appellee.” (Emphasis added.)

Id. at 232, 372 A.2d at 603.

While there is not present in the instant appeal a similar offer for the submission of the selected acreage for approval by the trial court, we nevertheless believe that such approval is appropriate and within the inherent jurisdiction of the court, as a court of equity; and that it is also within the court’s jurisdiction to determine the reasonableness of the protective easement to be prepared for the remainder of the property and to resolve the dispute concerning unpaid taxes and to determine the effect, if any, of the release of the 29.8 acres on the first deed of trust.

We therefore conclude that the order of ratification must be vacated and that upon remand the chancellor should conduct further proceedings to determine equitable solutions to the issues which remain.

Orders of the Circuit Court for Prince George's County in Equity E-4548 and Equity E-4618 vacated; cause remanded for further proceedings in accordance with this opinion; costs to be paid by appellants.

      . The security device involved was a deed of trust, not a mortgage. Deeds of trust are widely used in Montgomery and Prince George’s Counties and “in practice... are foreclosed in almost the same manner as power of sale mortgages.” Editor’s note, Maryland Rule W77 (Deed of Trust — Foreclosure — Release — Removal). In Le Brun v. Prosise, 197 Md. 466, 473-74, 79 A.2d 543, 547 (1951), the Court of Appeals observed: “For most purposes any such deed of trust is a mortgage, Manor Coal Co. v. Beckman, 151 Md. 102, 115-116, 133 A. 893, and is subject to some (but not all) statutory provisions relating to mortgages.” The statutory provisions were formerly contained in Code, Art. 66 and now appear in Code, Real Prop. Art., Sec. 7-101, et seg., with the exception of the Secondary Mortgage Loan Act which remains as sections 39 through 70 of Article 66. For a discussion of the various distinctions in Maryland between mortgages and deeds of trust, see Comment, Deeds of Trust and Article 66, Section 24 of the Maryland Code, 13 Md.L.Rev. 114 (1953). See also n.14, infra.

      . The origin of the Brandywine Farms Joint Venture is a bit involved. In September 1970, the owners of the tract in question entered into a contract for the sale of the property to Valhalla Vacationlands, Inc. Valhalla suffered financial difficulties and eventually assigned its rights under the contract of sale to several of its principals who, with some additional people, then formed Brandywine Farms Joint Venture. The infusion of additional capital from the new joint venturers’ contributions allowed the Joint Venture to complete the purchase of the property.

      . These notes were dated September 24,1971 and provided for repayment of principal in nine (9) equal annual installments, plus 7% interest. One of the noteholders, Edward C. Freeman, the real estate broker in the original acquisition of the tract by appellees’ vendors, is also a member of the Joint Venture and of its three-member “Managing Committee.” Bobby R. Owens, who with his wife is another noteholder, is also a member of the Joint Venture. In addition, we observe that the noteholder secured by the first deed of trust is Spencer B. Stephens, who is likewise a Joint Venture member.

      . An agreement of sale dated September 24, 1970 between the record owners of the tract and Valhalla Vacationlands, Inc., whose rights were eventually acquired by the Joint Venture, provided for the release of 30 acres at settlement. An attached plat showed a location for the 30 acres in the northerly portion of the total acreage. The agreement also provided for subsequent releases to run in a southeasterly direction. At settlement, this was reduced to 25 acres and, as noted, the language of the deed of trust contained no reference to the location of the 25 acre parcel. This agreement of sale was not admitted into evidence by the chancellor.

      . Apparently, no cash interest payments were ever made to the third noteholder and Joint Venture Managing Committee Member, Edward C. Freeman, although the record is unclear on this point. It would seem from the testimony heard by the chancellor that Mr. Freeman received his interest payments in the form of set-offs against assessments levied on the various Joint Venturers. It is clear that no principal was ever paid on the third note.

      . In November 1977, the Managing Committee of the Joint Venture attempted, unsuccessfully, to avert threatened foreclosure, by a special assessment upon each member of $3,000.

      . One of the Managing Committee members, Robert J. Garner, attempted to pay one year’s taxes on May 19,1978; however, the check for $694.92 was returned because the county required full payment of all past due taxes in order to redeem a property after a tax sale. The amount owed at that time was $1,474.50.

      . See n. 3, supra. Mr. Freeman had refused to sign the final plat prepared by Mr. Machen, stating that it contained errors.

      . We note that the typewritten portion of the deed of trust contained an express agreement “that the noteholders waive the recovery of any deficiency decree against the grantor, its successors or assigns, in the event of foreclosure----”

      . The court heard additional testimony from Francis Burgess, a noteholder. It also received, without objection, an “Amended Statement of Claim” showing the balances due on the deed of trust notes: Note No. 1 (Owens), $66,524.99; Note No. 2 (Burgess), $66,524.99; Note No. 3 (Freeman), $94,918.50. State and county taxes due for 1976-77 and 1977-78 were $1,474.50.

      . The easement, under paragraph 4(c) of the deed of trust, “may be either dedicated by record plat or granted in the release to be executed hereunder.”

      . The release clause contained the following language:
      “[T]he Mortgagor is entitled from and after the date hereof, at its request, in consideration of the monies paid to the Mortgagee on account of the purchase price, to have released, without further payment, forty (40) acres of the property secured by this Mortgage.”

      . The court rejected the mortgagee’s contention that Gerber v. Karr, 231 Md. 180, 189 A.2d 353 (1963) was controlling. The holding of Gerber that “a mortgagor cannot call for a partial release after defaulting on his obligations under the mortgage,” id. at 185, 189 A.2d at 355, was limited to the facts there present: the mortgagor had not paid for the release prior to default and the deed of trust indicated that no right of release was intended after default. Leisure Campground v. Leisure Estates, 280 Md. 220, 224, 372 A.2d 595, 598 (1977).

      . As we noted in n. 1, supra, for most purposes the differences between mortgages and deeds of trust are immaterial. In both documents the purchaser-debtor conveys bare legal title to the property — to either the mortgagee or the trustees. Unless there has been occasion to question the applicability to deeds of trust of specific statutory provisions dealing with mortgages, the Court of Appeals has recognized the similarities between the two species of documents: ‘The conveyance therefore, though called a deed, is in substance and purpose a mortgage, although it differs from the conventional mortgage in that the property pledged as security for money loaned is conveyed to a third person charged with the duty of enforcing the lien instead of to the lender directly.” Manor Coal Co. v. Beckman, 151 Md. 102, 115, 133 A. 893, 898 (1926). See also Le Brun v. Prosise, 197 Md. 466, 473-74, 79 A.2d 543, 547 (1951); Baker v. Dawson, 216 Md. 478, 486, 141 A.2d 157, 165 (1958).
      We have elucidated this point to further emphasize the applicability of the Leisure rationale to the instant situation. As Judge Digges pointed out: “Neither default nor institution of foreclosure in any way negates the fact that where full payment has been made, the mortgagor has, at the least, complete equitable ownership of the property, and the mortgagee [trustee] has, at most, only bare legal title to it. Leisure Campground v. Leisure Estates, 280 Md. 220, 224, 372 A.2d 595, 598 (1977). Once the appellees made full payment for the release of 29.8 acres under the second deed of trust, they obtained, at the minimum, complete equitable ownership; the trustees, at most, possessed only bare legal title to the acreage.

      . The typewritten provisions of the second deed of trust, while inartfully drawn, nevertheless contain no patent ambiguities. In interpreting the provisions contained therein, we must search for the understanding that a reasonable person in the same position would attach to the language used by the parties. The specific and subjective understanding of the litigants here is irrelevant in light of their objective intention manifested by the unambiguous words contained in the deed of trust. Teamster’s Local 639 v. Reliable Delivery Service, Inc., 42 Md. App. 485, 401 A.2d 191 (1979); Chesapeake Isle, Inc. v. Rolling Hills Development Co., 248 Md. 449, 453, 237 A.2d 1, 3 (1967). See also Ray v. Eurice, 201 Md. 115, 127, 93 A.2d 273, 279 (1952). Given this premise, we have little difficulty in applying the rule of Leisure to these facts.

      . Moreover, the trustees may not refuse to execute a consent and approval with respect to a plat of subdivision. Once a consent and approval is requested by the Joint Venture, the trustees are “required” to execute it.

      . We note that two of the noteholders have a voice in the management of the Joint Venture because of their membership in the Joint Venture. See n. 3, supra. As indicated in Part IV, infra, the chancellor, on remand, may properly apply traditional equitable principles in supervising the appellees’ selection of the 29.8 acres to be released from the second deed of trust lien, taking into account the intention of the parties as evidenced by the preparation of the subdivision plats, the second deed of trust itself, and the other evidence admitted at the hearing below.

      . Although there are no Maryland cases on point, we believe that the institution of the equity proceeding by the appellees, having as its paramount purpose the release of the 29.8 acres, is an unequivocal demand by the appellees upon the trustees for the release of the acreage. Such a conclusion was reached by the Louisiana Supreme Court in Schexnayder v. Capital Riverside Acres, Inc., 170 La. 714, 129 So. 139 (1930).

      . On the record before us, which we have carefully reviewed, we could not find the chancellor’s conclusion in this respect “clearly erroneous.” Maryland Rule 1086.

      . This was the plat which the chancellor ordered the substitute trustees to execute by his Order of September 21, 1978 in Equity E-4618.

      . Equitable considerations require that the selection of acreage to be released be guided by the good faith conduct of the parties. Even the broadest powers of selection are limited by countervailing interests of fairness and justice. See, e.g., Wolf v. Oldenburg, 154 Md. 353, 358, 140 A. 494, 496 (1928) (clause permitting selection of one acre lots to be released does not permit selection of non-contiguous parcels adding up to one acre). The test to be applied by the chancellor in reviewing the selection is one of reasonableness under all of the circumstances presented herein. Leisure Campground v. Leisure Estates, 280 Md. 220, 230, 373 A.2d 595, 603 (1977).


source: Caselaw Access Project

author:
Moore, J.,
      Wilner, J.,

license: Public Domain

text:
    JOSEPH H. SCOTT a/k/a Rozette Waters v. STATE OF MARYLAND
    [No. 1169,
    September Term, 1978.]

      Decided September 7, 1979.

    The cause was argued before Moore, Wilner and MacDaniel, JJ.

      J. Michael McLaughlin, Jr., Assigned Public Defender, for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ara Crowe, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court. Wilner, J., concurs and filed a concurring opinion at page 328 infra.

This appeal concerns both the guilt stage and the penalty stage of the trial of Joseph H. Scott, a/k/a Rozette Waters, on an indictment for the commission of a sexual offense in the first degree in violation of Article 27, Section 464 of the Maryland Code. After a bench trial in the Criminal Court of Baltimore (Arabian, J.), appellant was found guilty and sentenced to a term of 40 years. He presents three questions:

“1. If the only credible evidence of the victim’s age indicated he was 14 at the time of the incident resulting in criminal charges, did the State fail to prove an essential element of the crime of committing a sexual offense with a person under the age of 14?
2. If the Court’s sentence was influenced by facts not made known to Appellant or his counsel, was Appellant denied due process of law?
3. If the Court bases a conviction on corroborating testimony of a prosecuting witness, which corroborating testimony was not adduced at trial, was the conviction clearly erroneous?”

I

The specific offense involved was sodomy, alleged to have occurred on February 16, 1978. The victim, Michael McDougald, was a young boy. Appellant, at the time of the alleged offense, was 26. Article 27, Section 464 then provided that a person was guilty of a sexual offense in the first degree if he engaged in a sexual act:

“(2) With another person who is under 14 years of age and the person performing the act is at least 4 or more years older than the victim.”

Called as the State’s first witness, Michael McDougald stated that he was 14 years old at the time of trial, July 21, 1978, and that his birthday was Labor Day, September 5. The boy’s age, upon the basis of his testimony, if accurate, would have to have been 14 at the time of the alleged commission of the offense. Since the age of the victim is an essential element of the crime, appellant argues that his conviction cannot be sustained.

The victim’s response to the inquiry concerning his age, on direct examination, was not the only evidence presented on this issue. He also identified his parents as being Ann Austin, his mother, and Ernest Hewlett, his father. Michael’s mother testified and said she was 26 years of age and that her son was born on “September 5,1967 or 65.” A birth certificate was received in evidence, over objection, bearing the name, “Michael Eric McDougald” and disclosing the following:

1. Date of birth September 5, 1965

2. Father of child Ernest José Hewlett

3. Mother of child Annie McDougald

4. Mother’s age 14 years

Appellant contends that the birth certificate — which we believe to be the most probative evidence of the victim’s age — was inadmissible because “no link or connection was established between it and the prosecuting witness” or, in other words, relevancy was not shown. Such a contention is patently absurd. As conceded by appellant, the birth certificate is a public record and no witness was needed to introduce it. Md. [Cts. & Jud. Proc.] Code Ann. § 10-204 (1974). The name was that of the victim. Furthermore, the parents’ names on the certificate corresponded with those given by the victim. As to the year of birth, we think it is a fair interpretation of Ann McDougald's testimony that she was correcting herself out loud when she said 1967, or ’65. This construction is consistent with the date of birth on the certificate in addition to the disclosure on the certificate that she was 14 when the victim was born.

Appellant also argues that the State impermissibly impeached the victim when it questioned his mother as to his age and introduced the birth certificate. We disagree. The State is not precluded from presenting testimony which may be inconsistent. In such a situation, it is for the trier of fact to weigh the testimony. See Green v. State, 243 Md. 75, 80, 220 A.2d 131, 134 (1966). Here, the State was not bound by Michael’s testimony concerning his age nor precluded from presenting the more reliable evidence on the issue; and that evidence was sufficient to enable the finder of fact to conclude that Michael was less than 14 years of age when the crime was committed.

II

At sentencing, the following colloquy occurred between appellant’s counsel and the court:

“[COUNSEL]: Your Honor, I have read the medical, and I have also read the presentence report
THE COURT: Medical Report? The defendant was negative. I may add for your information that Mr. Conti made a special appointment to come to see me and suggested the maximum sentence.
[COUNSEL]: Well, that is indeed information to me, because it didn’t appear on the medical report. I don’t know whether it was Mr. Conti speaking or for whom was he speaking?
THE COURT: The Medical Office, Dr. Kniffen.
[COUNSEL]: Because the report as submitted — the last sentence, the second paragraph, it says that it is felt that he deserves time in prison. I won’t argue with that, but I’m saying now to Her Honor that he’s suggesting the maximum, and it would seem to me that it could just very easily have been written in the official report, Your Honor. I don’t think it is a maximum case. In fact, I would urge Her Honor to make no more than what he would have gotten if he had been convicted of perverted practice or sodomy or another way of putting it, I would ask Her Honor to follow the recommendation of the probation report, the presentence report, which I believe they used the term moderate.” (Emphasis added.)

Because appellant was not previously informed of Mr. Conti’s recommendation that a maximum sentence be imposed, he argues that he was denied due process of law. We agree with the State that the issue was not preserved for appellate review. Rule 1085. Even if it were properly before us, we would find it without merit. The information was disclosed by the court prior to sentencing and appellant’s counsel argued against the recommendation for a maximum (life) sentence. The maximum sentence was not imposed. There is no evidence that the oral communication improperly influenced the sentence or that the court abused its discretion when imposing sentence.

It should not be inferred, however, from these observations that such ex parte communications with a sentencing judge are condoned. They are not. Although a medical report was here involved, rather than a report of presentence investigation, we think that Rule 771 controls, and that any recommendations as to sentence by or on behalf of a medical officer should be made to the court in writing and delivered to the defendant or his counsel in accordance with the Rule; or if not in writing, should be made only in the presence of the defendant or his counsel, “in sufficient time prior to sentencing to afford a reasonable opportunity for the parties to investigate the information____” Md. Rule 771 (b); Haynes v. State, 19 Md. App. 428, 430-33, 311 A.2d 822, 824-25 (1973).

Ill

In a somewhat confusing third argument, appellant appears again to be challenging the sufficiency of the evidence. He seems concerned over the discrepancies between his testimony and that of the victim. It no longer requires citation of authority that the testimony of the victim, if believed by the trier of fact, is sufficient to sustain a conviction.

Appellant also contends that the trial judge improperly relied upon the corroborating evidence of Linda Page in resolving the credibility of the witnesses. With respect to this issue, the court said:

“This case is essentially one of credibility, primarily that of the version of the victim as compared to the Defendant. However, there are corroborating factors to consider in the victim’s testimony and the Court will take into account the one factor of corroboration of Linda Page’s testimony as to the statement made by the Defendant. ’’ (Emphasis added.)

Since the parties introduced into evidence a stipulation of Linda Page’s testimony, it was proper for the court to consider it. Furthermore, the statement was introduced to corroborate the appellant’s version of the event, not the victim’s.

Judgment affirmed; costs to be paid by appellant.

Wilner, J.,

concurring

I concur with the result reached by the panel majority on each of the three issues presented in this appeal. It is the second issue that causes me to write this concurring Opinion.

The majority opinion states that ex parte communications of the type that occurred here are not to be condoned. I would go further. Were it not for the fact that an objection to what occurred was not clearly made in the record, I would have voted to vacate this judgment. Although appellant did not receive the maximum sentence suggested by Mr. Conti, it is clear that his recommendation did influence the court to the extent of imposing a sentence of 40 years, which, subject only to one form or another of executive clemency, could indeed be a life sentence for this individual.

Mr. Conti apparently made a recommendation to the court that was not contained in his report and that caught both appellant and his counsel entirely by surprise. I shall assume that it caught the State also by surprise. This procedure is unfair, entirely unwarranted, and strikes at the heart of what I consider to be due process of law. As I noted earlier, had a proper objection been raised sufficient to preserve the point for appellate review under Maryland Rule 1085,1 would have voted at the very least to strike the sentence and remand for resentencing by another judge.

      . A 1978 Amendment, effective July 1, 1978, eliminated the above paragraph. 1978 Md. Laws ch. 205. Under section 2 of Chapter 205, the provisions of the Act are applicable only to Offenses committed after July 1,1978, and the new enactment does not preclude the prosecution of persons who, prior to July 1, 1978, committed crimes and offenses as then defined.

      . Cf. United States v. Austrew, 202 F. Supp. 816 (D. Md. 1962), aff'd, 317 F.2d 926 (4th Cir. 1963) (in criminal case, birth certificate was admissible even though first and middle names were transposed; the weight to be given it was enhanced by the victim’s testimony as to its contents).

      . Neither Mr. Conti nor Dr. Kniffen is otherwise identified in the record.


author: Mason, J.,

text:
    CALVIN STONE v. STATE OF MARYLAND
    [No. 1198,
    September Term, 1978.]

      Decided September 10, 1979.

    The cause was argued before Moore, Mason and Liss, JJ.

      Martha Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and William D. Roessler, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are concerned with whether a term of imprisonment can be validly imposed as a condition of probation.

On October 25,1976, Calvin Stone, appellant, entered a plea of guilty in the Circuit Court for Anne Arundel County to the crime of robbery. He was sentenced to a term of five years imprisonment; the sentence was suspended, and appellant was placed on supervisory probation for five years and ordered to make restitution and pay court costs. On December 23,1977, appellant was found guilty of violating the terms of his probation and the previously imposed five year sentence was reinstated. Appellant appeared before Judge Childs on March 15, 1978, for a sentence modification hearing. At this time the court issued the following “Order of Probation” which provided, among other things, that:

“The execution of the sentence of five years from December 23, 1977 has been suspended, ... and the defendant is hereby released on probation under the supervision of the Maryland Division of Parole and Probation for a period of five years effective this 15th day of March, 1978 subject to the following conditions:
“18 months to be served at the Anne Arundel County Detention Center on a live-in, work-out basis, concurrent with any other sentence now serving.”

Thereafter, appellant was released from the custody of the Commissioner of Corrections and committed to the jurisdiction of the Warden of the Anne Arundel County Detention Center. On October 6, 1978, appellant was convicted of escape from the Anne Arundel County Detention Center. He appeared before Judge Thieme on October 30, 1978, and was found guilty of violating the terms of his probation, including the special condition that he serve eighteen months at the Anne Arundel County Detention Center on a live-in, work-out basis. Thereupon, appellant’s original five year sentence was reinstated with credit for time served at the detention center.

Ignoring the order of probation and relying on a handwritten notation on the criminal hearing sheet which said:

“5 years sentence imposed on 12/23/77 suspended with exception of 18 months. Suspended portion of sentence to be subject to supervised probation. Imprisonment concurrent to any sentence now being served. Restitution of $1697.94 to be paid in such increments as agreed upon by Department of Parole and Probation. Defendant to be on work-release from Anne Arundel County Detention Center,”

appellant argues, in effect, that the trial court lacked jurisdiction to find him guilty of violating the terms of his probation because he was not on probation, but was still serving the eighteen month sentence imposed on March 15, 1978. Stated another way, that until he had completed his eighteen month sentence at the Anne Arundel County Detention Center on a live-in, work-out basis, he was not on probation and, therefore, could not be found guilty of violating probation.

The State, in response to appellant’s argument, merely stated in its brief:

“The Order of Probation, signed by E. Mackall Childs, the hearing judge, imposed as a special condition of probation that appellant board at the Detention Center for a period of 18 months commencing on March 15, 1978. Inasmuch as the record clearly reflects that appellant’s probation commenced on March 15,1978, and that serving the 18 months at the Detention Center was a condition of probation, appellant was clearly on probation when his probation was violated on October 30,1978. The hearing judge, therefore, had the power to revoke that probation.”

We, of course, are bound by the provisions and conditions contained in the order of probation and not the handwritten notation appearing on the criminal hearing sheet.

As we perceive it, the issue is whether the trial court could validly impose, as a special condition of probation, an eighteen month sentence to be served in the Anne Arundel County Detention Center on a live-in, work-out basis. Although this is an issue of first impression in this State, it has been considered in other jurisdictions and different results have been reached. Jurisdictions holding that imprisonment is a valid condition of probation have generally relied on express statutory authority permitting such action. For example, see State v. Iverson, 269 N.W.2d 390 (S.D. 1978); State v. Davis, 119 Ariz. 126, 592 P.2d 175 (1978); State v. Gloudemans, 73 Wis. 2d 514, 243 N.W.2d 222 (1976); State v. Jones, 327 So. 2d 18 (Fla. 1976); Prue v. State, 63 Wis. 2d 109, 216 N.W.2d 43 (1974); In Re: Williams Petition, 399 P.2d 732 (Mont. 1965).

On the other hand, jurisdictions holding that imprisonment is not a valid condition of probation generally rely on the lack of express statutory authority permitting such action.

In State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973) the defendant pleaded guilty to a charge of burglary and was placed on probation for a period of three years. One of the conditions of probation required that he serve 14 days in the county jail. The trial court, in explaining the reason he was sentencing the defendant to a term of imprisonment as a condition of probation indicated that he wanted the defendant to get a pretty good idea of what imprisonment was like; how frustrating, useless and degrading it is; and to reflect upon what a three to five or ten year sentence would mean. The Supreme Court of Nebraska held:

“Although the trial court’s motivation was admirable, imprisonment as a condition of probation must rest on statutory authority.
“Traditionally probation has been an alternative to imprisonment and the two sentencing alternatives have been treated as mutually exclusive in the absence of statute. An examination of the Nebraska statutes demonstrates that although the legislature has now provided for some conditions of probation which is offering alternatives other than imprisonment or traditional probation, it has not authorized combining imprisonment and probation in the same sentence.” 212 N.W.2d at 567.

In State v. Evans, 512 P.2d 1225, 109 Ariz. 491 (1973) the defendant was found guilty of assault with intent to commit robbery, and was sentenced to ten years probation, conditioned upon serving eight to ten years in the state prison. The Supreme Court of Arizona, in holding that the trial court had no statutory authority for imposing an eight to ten year prison sentence as a condition for probation, said:

“In State v. Van Meter, 7 Ariz. App. 422, 440 P.2d 58 (1968), a similar conditional probation was ordered. There the defendant was placed on probation conditioned upon his serving four months in county jail. The court said:
‘The incarceration of a person in the county jail is the passing of a sentence and not the suspension thereof. The fact that the court terms it as a condition of probation does not render it any the less a sentence of imprisonment. No authority existing for the dual sentence imposed, it is illegal and must be set aside. 7 Ariz. App. at 428, 440 P. 2d at 64.’ ” 512 P.2d at 1228.

See also People v. Ledford, 477 P.2d 374 (Colo. 1970). In that case the defendant was convicted of driving while under the influence of intoxicating liquor. His application for probation was granted, and as one of the conditions of probation he was ordered to serve ninety days in the county jail. On appeal, the Supreme Court of Colorado, in holding that the county court did not have authority or power to impose a jail sentence as a condition of probation, said:

“When an accused is granted probation, he is also granted his liberty and freedom from confinement in a jail or penitentiary. Unless there is specific statutory authority to the contrary, a trial court may not on the one hand grant probation and on the other hand impose institutional confinement or a jail sentence as a condition of that probation. Trial courts have a wide discretion in imposing certain conditions upon a probationer, but not included within its discretionary power is the authority to impose jail confinement as a condition.”

Of like import see Boyne v. State, 586 P.2d 1250 (Alaska, 1978); State v. Harris, 251 N.W.2d 483 (Iowa, 1977); State v. Marshall, 247 N.E.2d 484 (S.D. 1976).

The statutory provisions granting trial judges of this State discretion to suspend sentences or parts thereof and place defendants on probation is derived from Article 27, sections 639 and 641A of the Maryland Code.

Section 639, in part, provides:

“The courts may suspend sentence generally or for a definite time, and may make such orders and impose such terms as to costs, recognizance for appearance, or matters relating to the residence or conduct of the convicts as may be deemed proper

Section 641A, in part, provides:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years. ’’ (Emphasis supplied).

Although the above statutes give the trial judges a broad grant of discretionary authority to place defendants on probation “upon such terms and conditions as the court deems proper”, its power to impose conditions of probation is not unlimited. In Kelly v. State, 151 Md. 87, 133 A. 899 (1926) the trial court suspended the sentence of the defendant in a bastardy proceeding and ordered him to pay the sum of ten dollars monthly. In reversing this order the Court of Appeals held that “the imposition of the fine or penalty of ten dollars monthly was not a suspension of sentence within the meaning of the law, but the imposition of a sentence----” Id. at 100. In Bird v. State, 231 Md. 432, 190 A.2d 804 (1963) the defendant was convicted of assault with intent to murder and was sentenced to a term of not more than ten years. The trial court suspended the sentence on condition that “she leave and go back to Puerto Rico ... and remain there for at least [a] ten year period.” Id. at 434. In remanding the case for a proper sentence, the Court of Appeals held that banishment from the United States to Puerto Rico, imposed as a condition to the suspension of the ten year sentence, was beyond the power of the trial court and void. See also Laurie v. State, 29 Md. App. 609, 349 A. 2d 276 (1976), Haynes v. State, 26 Md. App. 43, 337 A. 2d 130 (1975), and Watson v. State, 17 Md. App. 263, 301 A.2d 26 (1973) where this court held that the conditions of probation imposed were beyond the authority of the trial court.

Because the Court of Appeals and this court in the above cited cases have held, in effect, that the authority to impose conditions of probation is not unlimited, we conclude that in the absence of express statutory authority, confinement in a jail-type institution, such as the Anne Arundel County Detention Center, is not an authorized condition of probation. Probation by its very nature implies the absence of incarceration. In fact, Article 41, section 107 f of the Code defines probation as “the conditional exemption from imprisonment allowed any person by suspension of sentence in the circuit court for any county of this State or in the Criminal Court of Baltimore.”

While we recognize that incarceration as a condition of probation might be beneficial in some cases, we believe that “this policy and the limits which should be placed upon it are matters properly for the legislature to consider and not for this court to attempt to read into the present statute[s].” Ledford, supra, 477 P.2d at 376.

Accordingly, we hold that the special condition of probation imposed in this case, i.e., “18 months to be served at the Anne Arundel County Detention Center on a live-in, work-out basis, concurrent with any other sentence now serving” was beyond the power of the trial court and void.

In Finnegan v. State, 4 Md. App. 396 (1968) this court said: “The validity of conditions of probation as set forth in the original sentence may be determined on appeal from the original judgment, Bird v. State, 231 Md. 432,437-438, but not on appeal from revocation of probation, because to do so would, in effect, permit a circumvention of Md. Rule 1012, which requires an appeal to be taken in thirty days.” Accord Coleman v. State, 231 Md. 220, 189 A.2d 616 (1963).

Because the instant case is not an appeal from the original judgment but an appeal from the revocation of probation, appellant, in view of Finnegan, supra, is entitled to no relief here. He is, however, not without a remedy. He may apply to the trial court for correction of an illegal sentence under Maryland Rule 774 a, or he may seek relief under the Uniform Post Conviction Procedure Act. See Smith v. State, 31 Md. App. 310, 356 A.2d 320 (1976).

Appellant also argues that the evidence was insufficient to show a violation of probation; that the conviction of violating probation violates the prohibition against double jeopardy; that the conviction of violating probation, based solely on hearsay evidence violates due process. These arguments are without merit and can be disposed of briefly. With respect to the sufficiency of the evidence to show a violation of probation, appellant’s escape from the Anne Arundel County Detention Center was ample evidence in and of itself to support his conviction.. Regarding the issues of double jeopardy and the denial of due process, neither issue was raised below. Therefore, they were not preserved for appellate review. Maryland Rule 1085.

Judgment affirmed.

Costs to be paid by appellant.


author: Moore, J.,

text:
    ALLENTOWN PLAZA ASSOCIATES et al. v. SUBURBAN PROPANE GAS CORPORATION et al.
    [No. 1274,
    September Term, 1978.]

      Decided September 10, 1979.

      The cause was argued before Gilbert, C. J., and Morton and Moore, JJ.

      Jerome P. Friedlander, II and David S. Bruce, with whom were Friedlander, Friedlander & Brooks, P.C. and Lancaster, Bland, Eisele & Herring on the brief, for appellants.

      L. Palmer Foret, with whom were Carr, Jordan, Coyne & Savits on the brief, for appellee Suburban Propane Gas Corporation. Martin L. Goozman, with whom were Frank J. Ragione and Silber, Wilson & Goozman and Interdonato & Ragione on the brief, for appellee Joseph J. Palmer, Jr. Submitted on brief by Peter E. Derry send. McChesney & Pyne, Chartered for appellee K-Lo Plumbing, Inc. Submitted on brief by Robert B. Myers for other appellees.
   Moore, J.,

delivered the opinion of the Court.

In the proceedings below, the Circuit Court for Prince George’s County (Levin, J.) granted summary judgment motions filed by the defendants, four in number, based upon the general three-year statute of limitations contained in Md. [Cts. & Jud. Proc.] Code Ann. § 5-101 (1974). The court rejected the contentions of the plaintiffs, appellants here, that their causes of action in assumpsit and tort, arising out of the construction of a shopping mall, were saved by the provisions of sections 5-108 of the same Article, under which no claim for damages accrues “from the defective and unsafe condition of an improvement to real property” occurring more than 20 years after the completion of the improvement. We shall affirm.

I

The appellant, Allentown Plaza Associates, is a Maryland limited partnership, which entered into a prime construction contract in March 1972 with appellant, Rand Industries, Inc., as general contractor, for the construction of a shopping center, known as Allentown Mall, located in Camp Springs, Prince George’s County, Maryland. Rand later became a partner in Allentown Plaza Associates.

Because of the unavailability of natural gas from the Washington Gas Light Company, appellants installed an underground pipeline system to provide liquid propane gas for its tenants. In March 1972, Allentown Plaza entered into a contract with the appellee, Suburban Propane Gas Corporation (Suburban), to supply the propane, to provide a propane gas storage tank, and to install 23 meters for measuring and controlling pressures for the base usage on each rental unit in the Mall. These meters were to be temporary and were to be removed when natural gas became available. The first paragraph of the contract provided in part:

“All Suburban’s equipment shall remain personalty, regardless of how attached to the realty, and shall remain the sole property of Suburban, and Suburban shall have access thereto at all times for purposes of removal, repair, alteration, replacement and service, including the equipment of the individual tenants, exceptas otherwise provided for in this agreement----(Emphasis added.)

Pursuant to the contract, Suburban supplied the gas meters to the site but, for reasons not disclosed in the record, did not install them. Appellants were aware on November 30, 1972 of this breach of the propane contract, but took no legal action at that time. Rather, they employed two plumbing contractors, the appellees, Joseph J. Palmer, Jr. and K-Lo Plumbing, Inc., to make the installations. By October 1973, all the meters had been installed. Service to the stores with liquid propane gas commenced. A gas leak was discovered in the underground pipeline system in February 1975, and some corrective action was taken by the appellants. In September 1975, however, addditional leaks were detected and the entire underground system was abandoned and replaced by pipelines above ground. Replacement costs were approximately $30,500.

On January 1, 1977, over 3 years after the last meter and coupling had been installed, appellants filed a declaration against the aforementioned appellees and against the firm of Freidin and Arey Associates, the mechanical and electrical engineers for the project. They alleged that the leaks were caused by corrosion of the pipes and that the corrosion was due to appellees’ failure to install insulating fittings, known in the trade as “dielectric couplings,” where the gas lines connected to the gas .meters.

More specifically, the claim against Suburban was in assumpsit for failure to install the meters as required under the agreement, and in tort for failing to provide dielectric couplings with the meters and to warn the appellants of the need for such couplings. The plumbing contractors who made the installations were alleged to be negligent in failing to use and to install dielectric couplings. The cause of action against Freidin and Arey was based upon negligence in failing to provide specifications or warnings concerning the need for such couplings or insulating fittings and otherwise failing to protect the pipes from corrosion.

Following discovery, each of the appellees, filed a motion for summary judgment on various grounds, including, in each instance, a claim that the declaration was barred by the three-year statute of limitations governing civil actions. Md. [Cts. & Jud. Proc.] Code Ann. § 5-101 (1974). In a concise memorandum opinion and accompanying order, the motions were granted.

With respect to the count in assumpsit against Suburban, the court found that a breach of the Allentown-Suburban contract occurred prior to January 1,1974, “a time computed most favorably for Allentown.” Because the declaration was not filed until January 11, 1977, more than three years had elapsed and the assumpsit claim was barred by section 5-101. The court rejected the contention that the statute did not commence to run until February 1975 when the defects in the pipe system were discovered, instead holding that the three-year period began to run from the date of the breach of the agreement and not from the time the breach was discovered. Mayor & Council of Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 338 A.2d 275, cert. denied, 423 U.S. 1017 (1975). See also Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972). With respect to the negligence counts, the court also found that section 5-101 was applicable, again rejecting a contention by the appellants that the period of limitations should begin to run from the date the wrong was discovered (February, 1975) and not the date when it occurred (December, 1973). Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972). With respect to appellants’ reliance upon section 5-108, the court held as follows:

“We do not believe that the gas pipe and meter system involved in this instance is an ‘improvement to real property’ within the meaning of § 5-108. The law in this state regarding what constitutes an improvement for purposes of § 5-108 treatment is very unclear. As a matter of fact, we have been unable to find any recorded case on this subject. However, Bankers’ & Merchants’ Credit Company v. Harlem Park Building & Loan Association, 160 Md. 230 (1930) points to a distinction between a fixture and an improvement to realty. This Court is of the opinion that the entire underground pipe and meter system was a fixture attaching to an improvement, the improvement being the above ground structure known as Allentown Mall Shopping Center.”

II

Appellants’ sole contention on this appeal is that the court erred in its failure to apply section 5-108. Succinctly stated, appellants contend that section 5-108 changes established law as to when an action, involving an improvement to real property, accrues. Appellants concede that, prior to the adoption of the section, the applicable time for accrual was when the wrong occurred. Watson v. Dorsey, 265 Md. 509. They argue, however, that the enactment of section 5-108 (c) — which provides that a cause of action under the section “accrues when the injury or damage occurs” — changed prior law. In accordance with the change, they claim, the normal three-year statute of limitations begins to run when damage or injury caused by a defective and unsafe condition of an improvement to real estate is discovered, except, of course, that after the lapse of 20 years all rights to file an action are lost. Applying section 5-108 to the instant case, it is appellants’ position that their damage and injury occurred not when the inadequate couplings were installed but when the underground pipe leaked in 1975. They state: “This was their damage and injury and it occurred [in February 1975] within three years before the Declaration was filed [on January 11, 1977] and before 20 years had passed.”

As the Revisor’s Note to section 5-108 indicates, the section derived from former Md. Ann. Code art. 57, § 20, repealed by 1973 Md. Laws, 1st Spec. Sess., ch. 2, § 2, effective January 1, 1974. The Note goes on to state:

“It is believed that this is an attempt to relieve builders, contractors, landlords, and realtors of the risk of latent defects in design, construction, or maintenance of an improvement to realty manifesting themselves more than 20years after the improvement is put in use. The section is drafted in the form of a statute of limitations, but, in reality,it grants immunity from suit in certain instances. Literally construed, it would compel a plaintiff injured on the 364th day of the 19th year after completion to file his suit within one day after the injury occurred, a perverse result to say the least, which possibly violates equal protection. Alternatively, the section might allow wrongful death suits to be commenced 18 years after they would be barred by the regular statute of limitations.
The section if conceived of as a grant of immunity, avoids these anomalies. The normal statute of limitations will apply if an actionable injury occurs. ” (Emphasis added.)

In our judgment, there is substantial merit to the suggestion in the Revisor’s Note, that the section be conceived “as a grant of immunity.” At all events, there is a serious question as to whether the section could be applied retrospectively, as the facts in this case would require. Furthermore, there is a question as to whether, in the event of retrospective application, the language of subsection (c) constitutes an adoption by the Legislature of the “discovery rule” in the absence of specific language to that effect. Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 258 N.W.2d 762 (1977). These and related issues must yield, however, to the threshold question whether the instant appeal does involve an “improvement to real property.” The court below held it did not; and while, in our judgment, the stated reasons for its conclusion were lacking in clarity, we deem the conclusion itself to be correct. This conclusion obviates the necessity for determination of the other questions of interpretation of section 5-108 strongly urged upon us by appellants.

Ill

With respect to the pivotal question of this appeal, it is the appellants’ position “the meters and their couplings, especially the couplings, were an improvement to real property” within the meaning of section 5-108. We disagree for two fundamental reasons, either of which is sufficient to support an affirmance of the lower court’s determination. First, as the law of this and other jurisdictions discloses, the gas meters and their couplings were not an improvement to-real property within established definitions of the term. And second, the contract between Suburban and the appellant specifically provided that the meters were to remain personalty and the sole property of Suburban.

In determining what constitutes an “improvement to real property” courts have employed two basic approaches. One applies common law fixture analysis. Smith v. Allen-Bradley Co., 371 F. Supp. 698 (W.D. Va. 1974). The other — most frequently used — avoids “the vagaries of fixture law” and adopts a “commonsense” interpretation of the phrase. See Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn. 1977). The commonsense approach commences with an examination of the “common usage of language.” Kallas Millwork Corp. v. Square D. Co., 225 N.W.2d 454 (Wisc. 1975). It has been stated that an improvement “includes everything that permanently enhances the value of premises for general uses.” (Emphasis added.) 41 Am.Jur.2d, Improvements § 1 (1968). See also id. §§ 22, 23. The Washington court in Seigloch v. Iroquois Mining Co. defined an improvement as follows:

“The term must mean improvements of the realty; that is to say, such things as are placed thereon by the way of betterments which are of a permanent nature and which add to the value of the property as real property. This would include buildings and structures of every kind, and also such machinery as was placed thereon of a permanent nature and which tended to increase the value of the property for the purposes for which it was used____”

181 P. 51, 53 (Wash. 1919).

In such an analysis, one looks to the nature of the improvement, its relationship to the land and its occupants, and its permanence. For example, in Pacific Indemnity Co. v. Thompson-Yaeger, 260 N.W.2d 548, the court held that a furnace which was attached to a building with a complex system of pipes and ducts was an improvement to real property, reversing a lower court determination which applied the law of fixtures to conclude that the furnace was not an improvement. Similarly, the New Jersey court in Brown v. Jersey Central Power & Light Co., 394 A.2d 397 (Super. Ct. App. Div. 1978) held that a transfer switch assembly, a component of a missile system, which was housed in an anchored metal cabinet, located in a cinderblock building, was an improvement to real property. It was án integral part of the system, crucial to its operation.

In the instant case, it is clear that the gas meters and their couplings were not improvements to real property. These meters, rented from Suburban by appellants, were meant to be temporary, not permanent. They were to be removed when natural gas became available. Furthermore, Suburban, as owner of the meters, affixed them to the above-ground pipeline for the limited purpose of measuring how much propane each tenant used. It is inconceivable that either appellant or Suburban contemplated making an improvement to real property when the meters were attached. Nor can it be contended that the meters enhanced the value of the property. Their only function was to measure the tenants’ usage of propane. They did not pass with the land but were on the property temporarily pursuant to appellants’ contract with Suburban.

There remains an additional reason for our conclusion in this case. That is, the contract provision between appellants and Suburban Propane which expressly provided that the gas meters were rented and were to remain personalty and the sole property of Suburban. It has been recognized frequently that contract provisions that a fixture or an improvement are to remain the personal property of the builder or the annexer are valid and controlling. 1 Thompson on Real Property § 80 (1964); 41 Am.Jur.2d, Improvements § 3 (1968). Consequently, in such situations, the ordinary tests and criteria for determining when an object becomes a fixture are not pertinent. 35 Am.Jur.2d, Fixtures § 16 (1967). This freedom of contract to designate chattels to remain personalty, however, “is limited to chattels which are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, or without destroying or materially injuring the realty to which they are attached.” 1 Thompson on Real Property % 80, at 381 (1964). Here, all parties intended that the gas meters would be used only until natural gas was available at which time they would be removed. The meter was attached simply to the pipe above ground. Upon removal, no damage would occur to the meter or the property to which it was attached. The contract between the parties permissibly provided that the gas meter would remain personalty. Since the gas meter was to remain personalty, and the sole property of Suburban, it could not become an improvement to real property. Accordingly, section 5-108 which applies to improvements to real property could not be applicable..

Judgments affirmed; costs to be paid by appellants.

      . Section 5-101 provides:
      “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” (Emphasis added.)

      . Although framed as a statute of limitations, § 5-108 has been classified in the Revisor’s Note as a grant of immunity to builders, contractors, realtors, and landlords after 20 years from the date the improvement is completed. It provides in part:
      “(a) Injury resulting from improvement to realty. — Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to realor personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
      (c) When action accrues. — A cause of action for an injury described in this section accrues when the injury or damage occurs.

      . We are told that a dielectric coupling would have afforded protection to the underground pipeline and that such a coupling differs from the metal couplings actually used only in that it has a plastic-like sleeve which prevents the passage of current between the meter and the underground pipeline; and that the cost differential between the metal and dielectric couplings was about §1.00 each.

      . See note 1, supra.

      . The court recognized that the discovery rule is applicable, however, where professional malpractice is concerned. See Harig v. Johns-Manville Products, 284 Md. 70, 394 A.2d 299 (1978) (applies to discovery of latent disease); Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972) (attorney); Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972) (accountant); Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969) (accountant); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) (civil engineer); Jones v. Sugar, 18 Ma. App. 99, 305 A.2d 219 (1973) (physicians). For a recent case concerning the time of accrual of a cause of action for past, present, and prospective damages for permanent nuisance involving ongoing activities, see Goldstein v. Potomac Electric Power Co., 285 Md. 673 (1979).

      . See note 2, supra.

      . Installation of the meters was complete by the end of 1973 but the law was not effective until January 1, 1974. The Court of Appeals, after reviewing a long line of Maryland cases, held in Slate v. Zitomer, that an amendment to a statute of limitations provision, as with changes to all substantive law, would not be applied retroactively unless the legislature clearly expressed such an intention. 275 Md. 534, 538-45, 341 A.2d 789, 793-95 (1975), cert. denied, 423 U.S. 1076 (1976).

      . As previously disclosed, the trial judge was “of the opinion that the entire underground pipe and meter system was a fixture attaching to an improvement, the improvement being the above ground structure known as Allentown Mall Shopping Center.”

      . “[A] fixture is a former chattel which,, while retaining its separate physical identity, is so connected with the realty' that a disinterested observer would consider it a part thereof.” 5 American Law of Property § 19.2, at 3-4 (A. J. Casner ed. 1952). “The term implies something having possible existence apart from realty, but which may by annexation be assimilated into realty. Things of a personal nature or buildings or other structures upon the land, which have been so fixed to land as to become a part thereof, are termed ‘fixtures’, and pass with the land in any transfer of ownership....” 1 Thompson on Real Property § 55, at 171 (1964). Once it is determined that personalty has become a fixture, it is usually held that it has become a part of the property to which it is affixed and cannot be removed from it, unless it falls within the trade fixture exception. Id. at § 77.
      Whether a chattel has become a fixture is a mixed question of law and fact. To make this determination the following factors are examined: the intent of the parties; the character of the chattel; the degree and mode of annexation; the relationship of the chattel to the realty to which it is attached; the relationship of the parties; and any injury to the chattel or freehold upon removal. Anderson v. Perpetual Bldg. & Loan Assoc., 172 Md. 94, 97-101, 190 A. 747, 748-50 (1937); Bankers’ & Merchants’ Credit Co. v. Harlem Park Bldg. & Loan Assoc., 160 Md. 230, 234-36, 153 A. 64, 66-68 (1931); Dudley & Carpenter v. Hurst, Miller & Co., 67 Md. 44, 47-48, 8 A. 901, 902-04 (1887). See also 1 Thompson on Real Property §§ 55-62 (1964); Smith v. Allen-Bradley Co., 371 F. Supp. 698 (W.D. Va. 1974); Bankers’ & Merchants’ Credit Co. v. Harlem Park Bldg. & Loan Assoc., 160 Md. 230; Willcox Boiler Co. v. Messier, 1 N.W.2d 130 (Minn. 1941).
      If, after undergoing this analysis, a chattel is deemed to be a fixture, it then becomes, by its very nature, an improvement to the real property to which it is affixed. However, as was recognized in Pinneo v. Stevens Pass, Inc., all improvements to real property are not necessarily fixtures. 545 P.2d 1207, 1209 (Wash. Ct. App. 1976). Cf. Yellowstone Pipe Line Co. v. State Board of Equalization, 358 P.2d 55 (Mont. 1960) (for tax assessment purposes, an oil pipeline was a fixture and therefore could not be considered an improvement to real property).

      . Black’s Law Dictionary (4th ed. 1968) defines an improvement as “[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.” Id. at 890.

      . See also Rosenberg v. Town of North Bergen, 293 A.2d 662 (N.J. 1972) (road was improvement to real property); Yakima Fruit & Cold Storage Co. v. Central Heating and Plumbing Co., 503 P.2d 108 (Wash. 1972) (refrigeration system of cold storage warehouse was an improvement to real property); Kallas Millwork Corp. v. Square D. Co., 225 N.W.2d 454 (Wisc. 1975) (nigh pressure water system designed for fire protection was an improvement to real property). Compare Ciancio v. Serafini, 574 P.2d 876 (Colo. Ct. App. 1977) (boundary survey not part of building or improvement project is not an improvement to real property); Turner v. Marable-Pirkle, Inc., 233 S.E.2d 773 (Ga. 1977), appeal dismissed, 434 U.S. 808 (1978) (improvements to electrical utility pole did not constitute an improvement to real property); Ilich v. John E. Smith Sons Co., Inc., 367 A.2d 1216 (N.J. Super Ct. Law Div. 1976) (rewiring of machine, which, under New Jersey’s institutional doctrine, was not a fixture, also was not an improvement to real property within the intendment of the statute).

      . Compare Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 503 P.2d 108 (Wash. 1972) (refrigerator system was an improvement to real property; its purpose was to maintain the warehouse as a cold storage facility).

      . See Pinneo v. Stevens Pass, Inc., 545 P.2d 1207 (Wash. Ct. App. 1976) (ski lift added value to the property and was an improvement to real property).

      . Cf. Edwards v. S & R Gas Co., 73 So. 2d 590 (La. Ct. App. 1954) (sale of property did not include butane tank rented by former owner; former owner had no title in leased tank and, therefore, could pass none).

      . Cf. Pelton Water Wheel Co. v. Oregon Iron & Steel Co., 170 P. 317 (Ore. 1918) (contract could have great weight); Foreman v. Columbia Theater Co., 148 P.2d 951 (Wash. 1944) (agreement between landlord and tenant with respect to ownership of chattels will govern regardless of common law rights). Compare Oakland Bank of Savings v. California Pressed Brick Co., 191 P. 524 (Cal. 1920) (agreement between buyer and seller that machine would remain personalty until payments completed was valid unless bona fide purchaser bought beforehand).