author: Gilbert, C. J.,

text:
    CLOVERFIELDS IMPROVEMENT ASSOC., INC. et al. v. SEABREEZE PROPERTIES, INC.
    [No. 1142,
    September Term, 1975.]

      Decided July 28, 1976.

      The cause was argued before Gilbert, C. J., and Moylan, Davidson, and Lowe, JJ.

      John W. Sause, Jr. for appellants.

      Irwin M. Sussman for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Cloverfields Improvement Association, Inc. (Association), one of the appellants, and Seabreeze Properties, Inc. (Seabreeze), the appellee, both claim ownership by separate recorded documents to the same property. Association here contends the assignment to; it vests it with title, while Seabreeze avers the deed it received some six (6) years later is the valid document.

In order to assert its ownership, Association filed a petition for a declaratory decree in the Circuit Court for Queen Anne’s County. Following an answer by Seabreeze, the matter was submitted on stipulated facts to Judge B. Hackett Turner. The trial judge decreed that Association’s assignment was a nullity, that Seabreeze was the owner of the property that Association claimed, and that Association was required to account to Seabreeze for certain monies collected by Association under the mistaken belief that they were so entitled.

Before undertaking to discuss the issues presented, we shall set the scene.

In 1959, David M. Nichols was a real estate developer actively engaged in Queen Anne’s County. Among the developments undertaken by Nichols, through a corporation named Guaranteed Realty Corporation (Guaranteed), was a 337 acre area known as “Cloverfields,” located on the Chester River, Kent Island. The lots sold by Guaranteed were subject to certain restrictions, covenants, and agreements. By the terms of one clause thereof, a buyer . agreed to pay to Guaranteed or its successor “... a sum not to exceed Twenty Dollars ($20.00) per year . ..” for each lot purchased. Guaranteed agreed that it or its successor would form “... an association of the Purchasers and Owners of the lots ...” for the express “purpose of taking title to and .operating the recreational facilities.” Each purchaser/lot owner covenanted to “maintain membership” in the Association and to abide by its rules and regulations. Guaranteed reserved unto itself the right to manage, supervise, and control all the facilities, “recreational and otherwise,” until seventy-five percent (75%) of the lots in the development had been sold. In the same year, 1959, Guaranteed conveyed the recreational facilities unto a Cloverfields Club, Inc. (Club), a corporation formed by Nichols apparently for the purpose of operating the recreational facilities.

By proclamation of the Governor of Maryland, the corporate charters of Guaranteed and Club were declared to be annulled on December 2, 1964, for nonpayment of taxes and failure to file an annual report. We infer that both Guaranteed and Club failed to pay their respective annual franchise taxes.

Notwithstanding the forfeiture of their charters, Guaranteed and Club purported to assign to Association, in April, 1965, “... all right, title, estate and interest in and to the annual maintenance fee established, set forth, and imposed on each of said lots....” Also, in April, 1965, Guaranteed deeded certain road ways to Association. Earlier in time, i.e., in November of 1962, Club had assigned its right, title, and interest in the operation and maintenance of a club and recreational facilities to Association.

Thereafter, Association, seemingly in reliance upon the purported assignments from Guaranteed and Club, collected the twenty dollar ($20.00) annual lot assessment charge and operated the recreational facilities. Association later discovered that Seabreeze had purchased from Olive J. Nichols and Catherine C. Wallman, “the Surviving Directors” of Guaranteed and Club, on July 2, 1971, all the remaining unsold lots in the development and, at the same time, had acquired from the surviving trustees the rights to collect the twenty dollar ($20.00) assessment and to operate the recreational facilities. From the record, we glean that Seabreeze made demand upon the lot owners for the remittance of the annual fee. Association then brought its declaratory action. While the suit was pending, the corporate charters of Guaranteed and Club were revived on December 10, 1973, by filing “Articles of Revival” with the State Department of Assessments and Taxation of Maryland.

THE APRIL 1965 DEED AND ASSIGNMENT

The deed and assignment from Guaranteed to Association occurred approximately four (4) months after Guaranteed’s corporate charter had been declared forfeited. What then was the effect of the assignment? According to H. Bruñe, Maryland Corporation Law and Practice, § 406 (rev. ed. 1953) [hereinafter referred to as Bruñe]:

“The forfeiture for non-payment of taxes puts an end to the corporate existence, and the rights of creditors become fixed at that time. The corporate assets are automatically transferred to the directors, as trustees, for use of the creditors and stockholders or members, and are held by such trustees until revival of the charter of the corporation. The directors as trustees do not incur a landowner’s liability as to property, title to which was no longer in the corporation at the time of forfeiture.’’(Footnotes omitted). (Emphasis added).

The Court of Appeals does not appear to have passed directly upon the situation presented by the unique facts of the case now before us, but, from two of its decisions, we are able to perceive what we believe would be its holding. In Atlantic Mill & Lumber Realty Co. v. Keefer, 179 Md. 496, 499-500, 20 A. 2d 178, 180 (1941), the Court said that all power which had been granted to a corporation whose charter is forfeited is “... inoperative, null and void. This organization ... is not legally in existence as a corporation and cannot function as a corporation.” The Court stated in Callahan v. Clemens, 184 Md. 520, 528, 41 A. 2d 473, 476 (1945), that forfeiture puts “... an end to the corporate existence.” Patently, if the corporate existence terminates upon forfeiture, and the assets are ipso facto transferred to the directors, as trustees, then the corporate officers, as officers, are devoid of authority to act for the corporation. A corporation is a creature of the State. It owes its very being to the State. “Into its nostrils the State must breathe the breath of a fictitious life for otherwise it would be no animated body but individualistic dust.” Once a corporation has been allowed to cease breathing, as through forfeiture, articles of revival are the only resuscitation available to generate life in the corporate body.

We hold that, inasmuch as the charters of Guaranteed and Club had been forfeited, the purported postforfeiture corporate deed and assignment to Association, by David Nichols as president of Guaranteed and Club, were nullities and consequently of no force and effect.

THE MANNER OF EXECUTION OF THE APRIL 24, 1965 DEED AND ASSIGNMENT AS AFFECTING THEIR VALIDITY

Association, cognizant of the weakness of its position as a result of the postforfeiture corporate act, asserts that even if the corporate deed and assignment are nullities, the officers, David M. Nichols, president, and Catherine C. Wallman, secretary, should be held to have executed both the deed and the assignment in the capacity of surviving trustees of the defunct corporation. To bolster its position, Association relies principally upon Philbin v. Thurn ex rel. Cook, 103 Md. 342, 63 A. 571 (1906); State ex rel. Gable v. Cheston, 51 Md. 352 (1879); and Flickinger v. Hull, 5 Gill 60 (1847).

Philbin involved a deed made by executors, who had, by a will, been named as testamentary trustees. Under the will, the executors had no power of sale, but the trustees were cloaked with that authority. The trustees signed a deed as executors, which signing was shown to be inadvertent. Later they executed a confirmatory deed. The Court, in answer to an attack upon the first deed by a creditor, opined that where a party in possession of property has several capacities and disposes of the property in one of those capacities, the law will attribute to his disposition the proper capacity even though he does not profess to exercise it.

Cheston was concerned with a deed made by executors, who, as in Philbin, were also trustees. The executors were empowered to sell, but not to purchase. The trustees, on the other hand, could do both. As “executors,” the trustees bought and sold a certain property. When their action was assailed by litigation, the Court took the view that the deed was proper in that the law will attribute the correct authority to the act irrespective of the fact that the trustees erroneously called themselves “executors” at the time of conveyancing.

Both Philbin and Cheston were grounded on the early holding in Flickinger, wherein the Court stated:

“... [W]here a man has several capacities, and is found in possession of property, the law will attach the possession to the capacity in which, of right, it ought to be held; so also, where having various capacities, he executes an authority delegated to him in one of those capacities, the law will attribute the act to the proper authority, although the person does not profess to exercise it, in virtue of that particular power.” 5 Gill at 74-75.

One fallacy in Association’s endeavor to apply the reasoning of Philbin, Cheston, and Flickinger lies in the fact that, in each of those three cases, the persons who executed the instruments which were the subject of litigation simultaneously exercised two distinct capacities or the signing in the wrong capacity was shown to be inadvertent. In the instant case, such is not the situation.

Nichols was not the president of the two corporations, Guaranteed or Club, at the time he subscribed the deed and assignment because there were no such corporations in esse. If there were no such corporations, then there could be neither a corporate president nor a corporate secretary. Ergo, when Nichols executed the deed and assignment, he could not have done so in a dual capacity, i.e., president and trustee, because he was no longer corporate president.

Moreover, it cannot be contended successfully that Nichols signed the deed and the assignment in the capacity of surviving trustee. It is manifest from the executed documents that Nichols signed as corporate president. His identification as such is beyond question. Having signed as president, having had his signature as president attested and witnessed as such, and having acknowledged both the deed and assignment as corporate president, we would be hard pressed to hold, as Association would have us do, that Nichols was really signing in the capacity of surviving trustee. Evidence of inadvertent signing under color of the wrong office is simply not present.

There is yet a more compelling reason why the April, 1965 deed and assignment are invalid. The law of Maryland is clear that, in order for surviving trustees of an extinct corporation to pass title to what were corporate assets, the majority of the surviving trustees must act to do so. Former Md. Ann. Code art. 23, § 78 provided:

“(a) Directors become trustees of assets until appointment of receiver. — Upon dissolution of any corporation of this State, and unless and until one or more receivers of the property and assets of the corporation have been appointed by a court of competent jurisdiction, the directors shall become and be, for purposes of liquidation, trustees of the property and assets of the corporation so dissolved.
(b) Powers of directors as trustees. — In the liquidation of the corporation and the winding up of its affairs, such trustees shall, until a receiver is appointed by such court, be vested, in their capacity as trustees, with full title to all the property and assets of the corporation. They shall proceed to collect and distribute the assets of the corporation, applying such assets to the extent available to the payment, satisfaction and discharge of existing debts and obligations of the corporation, including necessary expenses of liquidation, and distributing the remaining assets among the stockholders. They shall have power to carry out the contracts of the corporation; they may sell all or any part of the assets of the corporation at public or private sale; they may sue or be sued in their own names as trustees, or, notwithstanding such dissolution, in the name of the corporation; and they shall have power to do all other acts and things consistent with law and the charter of the corporation, necessary or appropriate to carry into effect the liquidation of the corporation and the winding up of its affairs. The will of a majority of the trustees shall govern.”

We observe that both the deed and the assignment were executed as follows:

As to the deed:

“WITNESS: GUARANTEED REALTY CORPORATION

S/ Edith H. Theraux

By: S/ David M. Nichols_ President

ATTEST:

S/ Catherine C. Wattman Secretary

(Place Corporate Seal Here) (SEAL)

+ + +

STATE OF MARYLAND

CITY OR COUNTY OF Baltimore , TO WIT:

I HEREBY CERTIFY that on this 15th day of April , 1965, before me, the subscriber, a Notary Public of the State of Maryland, in and for the County or City aforesaid, personally appeared David M. Nichols , President of Guaranteed Realty Corporation, a body corporate of the State of Maryland, and he did acknowledge the aforegoing Deed to the act of said body corporate.

WITNESS my hand and Notarial Seal. (SEAL)

S/ Edith H. Theraux_

Notary Public

My Commission Expires: 5/3/65”

As to the assignment:

“WITNESS: GUARANTEED REALTY CORPORATION

S/ Edith H. Theraux

By: S/ David M. Nichols_i__ President

ATTEST: (PLACE CORPORATE SEAL HERE)

S/ Catherine C. Wallman (SEAL)

WITNESS: CLOVERFIELDS CLUB, INC.

S/ Edith H. Theraux

By: S/ David M. Nichols_ President

ATTEST: (PLACE CORPORATE SEAL HERE)

S/ Catherine C. Wallman Secretary

(SEAL)

+ + +

STATE OF MARYLAND

CITY OR COUNTY OF Baltimore TO WIT:

On this 15th day of April , 1965, before me, a Notary Public , the undersigned, personally appeared David M. Nichols. , who acknowledged himself to be the_President of Guaranteed Realty Corporation, a body corporate of the State of Maryland, and that he, as such_ President, being authorized so to do, executed the aforegoing instrument for the purposes therein contained by signing the name of the corporation by himself as_President.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

(SEAL) S/ Edith H. Theraux_

Notary Public

My Commission Expires: 5/3/65

STATE OF MARYLAND

CITY OR COUNTY OF City of Baltimore TO WIT:

On this 15th day of April 1965, before me, a Notary Public , the undersigned, personally appeared David M. Nichols who acknowledged himself to be the_President of Cloverfields Club, Inc., a body corporate of the State of Maryland, and that he, as such_ President, being authorized so to do, executed the aforegoing instrument for the purposes therein contained by signing the name of the corporation by himself as President.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

(SEAL) S/ . Edith H. Theraux_

Notary Public

My Commission Expires:

It is immediately apparent that Catherine C. Wallman did not sign the deed in any capacity but merely attested to the signature of Nichols, and inferentially she affixed the corporate seal. Only Nichols’ signature was witnessed, and only he acknowledged the deed and the assignment.

Under the law of this State, a deed is required to be executed and acknowledged. Md. Ann. Code art. 21, § 4-101, (now codified as Real Property Art., § 4-101 (a)). Thus, even if Wallman’s signature attesting to the “corporate act” were determined to be an execution of the deed, there was no acknowledgment by her. Hence, the deed would be defective, absent the curative act. Md. Laws ch. 228 (1967).

The word “attest,” according to Black’s Law Dictionary 166 (3d ed. 1933), means “[t]o bear witness to; to affirm to be true or genuine. ... To witness the execution of a written instrument, at the request of him who makes it, and subscribe the same as a witness. White v. Magarahan, 87 Ga. 217, 13 S. E. 509 [(1891)]; Logwood v. Hussey, 60 Ala. [417 (1877)]; Arrington v. Arrington, 122 Ala. 510, 26 So. 152 [(1899)].” We think it beyond serious question that the signature of Catherine C. Wallman did no more than bear witness to the signature of David M. Nichols to the deed as well as to the assignment.

Ordinarily the duties of corporate officers are spelled out in the by-laws, Brune § 232, or by resolution of the board of directors. Md. Ann. Code, Corporations and Associations Art., § 2-414 (a)(1) and (2). Generally, a corporate secretary is not authorized to act in an executive capacity so as to bind the corporation to contracts. Nor has a secretary the authority to appoint agents. The corporate secretary is usually the keeper of the corporate seal. Brune § 232.

In any event, we believe it unmistakable that Wallman executed neither the deed nor the assignment as surviving trustee, but rather for the sole and limited purpose of witnessing what she ostensibly felt to be the corporate act of Nichols as president of both Guaranteed and Club.

We hold that Nichols and Wallman did not sign the 1965 deed or the 1965 assignment as surviving trustees, and, therefore, the 1965 instruments are invalid. See New Hampshire Fire Insurance Co. v. Virgil & Frank’s Locker Service, Inc., 302 F. 2d 780 (8th Cir. 1962).

THE SURVIVING TRUSTEES DEED OF JULY, 1971

We have already seen that, when a corporate charter has been forfeited, the directors of the terminated corporation hold the assets of the corporation as trustees for the benefit of creditors and stockholders. In the case at bar, the surviving trustees were, in 1971, empowered to “sell all or any part of the assets of the corporation at public or private sale.” Md. Ann. Code art. 23, § 78 (b). Pursuant to the authority conferred upon them by statute, Olive J. Nichols and Catherine C. Wallman, as surviving trustees of both Guaranteed and Club, bargained and sold, to Seabreeze, “all remaining lots” and the “... remaining strips of land, or roads, roadways, streets, alleys, walks or lanes ....” At the same time, and in the same instrument, the trustees assigned to Seabreeze “... the right to collect the annual lot charges ...,” the nub of this case, as well as the “... right to approve and disapprove all construction, plans and specifications ...” on any structure to be built within the development.

The combination deed and assignment to Seabreeze acknowledged that Guaranteed and Club had endeavored to convey and assign the same property, except the remaining lots, to Association, but the document referred to the paper writings executed in 1965 by Guaranteed and Club as “defective.”

The assignment and deed were executed by the surviving trustees in accordance with the applicable law. Judge Turner concluded, and we agree, that the deed and assignment were valid and did vest title to the remaining lots, streets, roadways, walks, alleys, and lanes in Seabreeze. Simultaneously, for the reasons stated, infra, Seabreeze acquired the rights to collect the annual lot charge of twenty dollars ($20.00) and to approve, prior to construction, building plans.

THE EFFECT OF THE ARTICLES OF REVIVAL ON THE 1965 DEED AND ASSIGNMENT

Then Md. Ann. Code art. 23, § 85 (d) provided:

“... [R]evival of the charter of the corporation shall validate all contracts, acts, matters and things made, done and performed within the scope of its charter by the corporation, its officers and agents during the time when the charter was void, with the same force and effect and to all intents and purposes as if the charter had at all times remained in full force and effect. All real and personal property, rights and credits of the corporation at the time its charter became void and of which it was not divested prior to such revival shall be vested in the corporation, after such revival, as fully as they were held by the corporation at the time its charter became void. The corporation after such revival shall be liable for all contracts, acts, matters and things made, done or performed in its name and on its behalf by its officers and agents prior to such revival as if its charter had at all times remained in full force and effect.”

Association, as we have previously noted, in an attempt to validate the April, 1965 deed and assignment, caused “Articles of Revival” to be filed on behalf of Guaranteed and Club. The Articles were filed while this instant suit was pending before the circuit court in 1973. Having successfully revitalized the two extinct corporations, Association then took the tack that the conveyance and assignment of 1965, even if defective when made, were cured by the revival of viable corporate status under § 85 (d). That simplistic approach ignores that sentence of § 85 (d) which states:

“All real and personal property, rights and credits of the corporation at the time its charter became void and of which it was not divested prior to such revival shall be vested in the corporation, after such revival, as fully as they were held by the corporation at the time its charter became void.” (Emphasis added).

We think former § 85 (d) to be clear and unambiguous in that the revived corporation may only take title to those assets which were legally not disposed of during the period of corporate demise. Inasmuch as the surviving trustees had, in 1971» validly conveyed and assigned the very property Association thought it had acquired in 1965, the total effect of the revival in this case is naught. The act of revival cannot divest a bona fide purchaser of his title.

TITLE TO THE CLUBHOUSE AND BOAT BASIN, AND THE RIGHT TO COLLECT THE ANNUAL MAINTENANCE FEE

By deed dated December 11,1959, Guaranteed conveyed to Club two (2) parcels of grounds. One was the clubhouse area and the other was the boat basin. The deed, however, did not purport to assign to Club the right to collect the twenty dollar ($20.00) annual fee per lot. Club took title to the land only.

Subsequently, Guaranteed and Club, on September 19, 1961, conveyed to what appears to have been another Nichols corporation, G. Bently Bell and Associates, Inc. (Bell), title to the clubhouse and boat basin. Club reserved “... unto itself the right to operate and maintain ... [the clubhouse] facilities and to collect the maintenance fee provided for such purposes by the terms of said restrictive covenants.” We observe, as did Judge Turner, that Club reserved a right “unto itself” that it had never acquired in the first instance. At the expense of repetition, we point out that the deed to Club from Guaranteed did not purport to assign to Club the right ¡;o collect the maintenance fee. Club was without authority unilaterally to enforce a right that was still in Guaranteed.

By assignment dated November 3, 1962, Club transferred to Association .. all of its right, title, interest and estate in the operation and maintenance of the club[house] and recreational facilities ...” and the right to collect the annual fee. Of course, Club, having earlier divested itself of legal title to the land and having never acquired the authority to collect the annual fee, in actuality assigned to Association absolutely nothing because it, at that time, possessed nothing.

Bell, as we have seen, acquired title to the clubhouse and boat basin as a result of a deed from Guaranteed and Club. Through a deed in March, 1965, Bell conveyed its title to Association. The validity of that deed is not in question. Thus, Association owns the recreational facility known as the clubhouse and the boat basin, but they did not acquire, by virtue of that ownership, the right to collect the annual fee.

We are cognizant of the anomaly that has been created by the imprudent conveyancing conducted in this case. The Association, which now owns the clubhouse and boat basin, has no right to collect the annual fee for the maintenance of those facilities. Seabreeze, which has the power to collect the twenty dollar ($20.00) per lot annual charge for the purpose of maintaining the recreational facilities, does not own the facilities. The situation is peculiar, but it has been created by the parties, not by the courts. The solution to the unusual situation in which the parties find themselves rests within their own powers to resolve. It is not for this Court, under the guise of judicial fiat, to loose the fetters with which the litigants have voluntarily bound themselves.

Additionally, Seabreeze has moved to supplement the record so as to incorporate facts not presented to the trial judge. Those facts, not having been before him, are not properly part of the record, and we refuse to consider them. It follows that the motion is denied.

Judgment affirmed.

Costs to be paid by appellants.

      . There are also two individual appellants, Nelson Malley and Mary Malley, his wife. For convenience, we shall, m this appeal, refer to ail appellants collectively as “Association.”

      . Such forfeiture was authorized at that time by Md. Ann. Code art. 81, § 204 (a). The statutory language in substantially the same form now appears in Md. Ann. Code, Corporations and Associations Art., § 3-503.

      . F. Maitland, Introduction to O. Gierke, Political Theories of the Middle Ages at xxx (1900).

      . Articles of revival were then authorized by Md. Ann. Code art. 23, § 85. Such a procedure is now codified in Corporations and Associations Art., § 3-508.

      . Now Corporations and Associations Art., § 3-410.

      . The deed was also signed and acknowledged by the receiver for the mortgagee of Guaranteed and by the trustee in bankruptcy. Neither signatory nor acknowledgment is of significance to this opinion. The trustee in bankruptcy subscribed the assignment, and his acknowledgment before a notary is part of the document. Association, through its then president, also signed and acknowledged the assignment.

      . Some of the legislative reasons for requiring an acknowledgment are to protect the property owner from coerced deeds, sham conveyances which would cloud titles, and to assure, insofar as possible, the validity of the land records.

      . David M. Nichols died shortly after the 1965 transactions had been completed.

      . Now Corporations and Associations Art., § 3-410 (c) (2).

      . Supra note 9.

      . Substantially the same language is now found in Corporations and Associations Art., § 3-513.

      . Interestingly, “... Olive J. Nichols and Catherine C. Wallman, as surviving officers of Guarantee and ... Club filed Articles of Revival for each corporation ....” The reason for their action in so doing is not explained in the record.

      . A possible trust situation arises from such an arrangement, but as that matter is not before us, we express no opinion thereon.


source: Caselaw Access Project

author: Levine, J.,

license: Public Domain

text:
    ANNE ARUNDEL COUNTY, MARYLAND v. MARYLAND NATIONAL BANK
    [No. 1167,
    September Term, 1975.]

      Decided July 28, 1976.

    The cause was argued before Morton, J., and Irving A. ¡Levine, Associate Judge of the Court of Appeals and H. Kemp MacDaniel, Associate Judge of the Third Judicial Circuit, specially assigned.

      Charles Fred Delavan, Assistant County Solicitor, with whom was Michael R. Roblyer, County Solicitor, on the brief, for appellant.

      Thomas M. Doums, with whom were Harry C. Blumenthal and Blumenthal, Goldsborough, May & Downs on the brief, for appellee.
   Levine, J.,

delivered the opinion of the Court.

In this zoning case, Anne Arundel County (the county) appeals from a circuit court order reversing a Board of Appeals’ decision denying the request of Maryland National Bank (Maryland National) to rezone a 0.965 acre of ground from the R5 residential to the C3 commercial zoning classification. The result of the action taken by the Circuit Court for Anne Arundel County (Biener, J.) was to grant the requested rezoning. We reverse.

The subject property is located in the Third Assessment District of the county on the west side of Crain Highway, the east side of Old Stage Road and the north side of Mayo Road. Directly to the east, across Crain Highway, is a large C3 zoning district, part of which is occupied by a shopping center but the remainder of which, though containing two service stations, is yet dominated by noncommercial uses. South of the subject property, across Mayo Road, is a local retail zoning district (CIA) occupied by four small stores. To the west, across Old Stage Road, is a large R5 district developed as the Glen Burnie Park subdivision, a residential area. The entire area to the north, bounded by Crain Highway on the east, the Maryland Route 100 overpass and Old Stage Road, is likewise zoned R5, and within this area are two tracts which have recently been denied a requested change from residential to commercial zoning.

The subject property was initially placed in the HC (heavy commercial) classification by a comprehensive zoning law enacted by Anne Arundel County in 1952. No development, however, occurred during the 20-year period which followed. In December 1972, after a 14-month series of preliminary studies, administrative hearings and court challenges, the county adopted a comprehensive rezoning which placed the subject property, as part of a larger 15 acre area, in the R5 category. Maryland National, which had negotiated a lease of the subject property, claims to have first learned of the rezoning action in May 1973, when it applied for a building permit for its proposed full-service branch bank with drive-in facilities. It then filed the rezoning request which culminates in this appeal.

In accordance with the zoning procedure prescribed for Anne Arundel County, the application was first scheduled for determination by the zoning hearing officer. At the hearing which he conducted, Maryland National declined to offer any testimony with respect to the application. No evidence having been presented in support of the rezoning, and the Office of Planning and Zoning having submitted a comprehensively reasoned recommendation against it, the hearing officer issued an order denying the request. Maryland National then appealed that decision to the Anne Arundel County Board of Appeals, which, sitting with only four members, split evenly. The effect of this action was to constitute a denial of the requested rezoning. On appeal by Maryland National to the circuit court, on the grounds that the reclassification to R5 was a mistake and resulted in a denial “of all reasonable utilization” of the property, the decision of the board was reversed. The court “[found] as a fact that the tract in question [was] suitable only for commercial use” and “that the subject tract was unsuitable for any of the uses listed under R-5, thus demonstrating that the appellant has been deprived of all reasonable use . ...” (all emphasis added).

The county urges reversal here on these grounds:

1. The determination of the Board of Appeals that Maryland National had failed to present sufficient evidence that inclusion of the subject property in the R5 classification under the comprehensive rezoning constituted a mistake was, at the very least, fairly debatable.

2. The zoning action taken by the county was not such a deprivation of all reasonable use of the subject property as would amount to a violation of Maryland National’s constitutional rights.

3. Maryland National failed to exhaust its administrative remedies by declining to present evidence before the zoning hearing officer, and thereby lacked standing to maintain any further appeals.

4. In making findings of fact, the circuit court exceeded the scope of judicial review applicable to zoning cases. Since we agree with the first two contentions, which alone compel reversal, we need not reáíih the remaining two.

(D

As in almost any appeal from the grant or denial of a rezoning request, we begin by recognizing certain basic principles. There is a strong presumption of correctness of original zoning and comprehensive rezoning, so that to sustain a piecemeal change therefrom, there must be produced strong evidence of mistake in the original zoning or a change in the character of the neighborhood. The burden of proving such mistake or change is a heavy one. Thus, when there is sufficient evidence before the rezoning body to render the issue fairly debatable, the courts may not substitute their judgment for that of the legislative agency. Pattey v. Board of Co. Comm’rs, 271 Md. 352, 359-60, 317 A. 2d 142 (1974); Trainer v. Lipchin, 269 Md. 667, 672-73, 309 A. 2d 471 (1973); Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A. 2d 244 (1973); Rockville v. Henley, 268 Md. 469, 472-73, 302 A. 2d 45 (1973).

Precisely in what respect Maryland National believes the county erred when it comprehensively rezoned the subject property to the R5 classification is less than clear. As nearly as we can determine, the thrust of the argument focuses on the methodology which the county employed during the various administrative stages. Succinctly stated, it appears that when the proposed comprehensive rezoning map for the Third Assessment District was issued and considered at public hearings in late 1971, a staff member of the Planning and Zoning Department discovered that the boundary line between the third and fourth districts had been incorrectly positioned on the zoning map. The result of this error was to exclude the subject property from the third district where it belonged. This oversight was corrected, however, in early 1972, and at all times during the various stages of the rezoning process which followed, the subject property was properly included in the third district map. One of the complaints Maryland National apparently makes in this regard is that it received no actual notification of the proposed rezoning. Nevertheless, because a part of the third district map, for reasons not here relevant, was subjected to a court challenge, Maryland National was afforded a brief opportunity, well before final adoption, to present its views to the county council in opposition to the residential classification.

In any event, Maryland National points to these alleged procedural defects, a claim which, as suggested, we find elusive, as the basis for its contention there was error committed in the adoption of the comprehensive rezoning. In effect, Maryland National argues that in some manner, the county failed to follow the proper procedures, although we discern no claim that there was a denial of procedural due process. The short answer is that the county complied with all procedural requirements imposed by statute or ordinance.

In regard to the showing which must be made to sustain the heavy burden of proving mistake in a comprehensive rezoning, there must be evidence to show that the assumptions or premises relied upon by the zoning body at the time of the comprehensive rezoning were invalid. Error can be established by showing that at the time of the comprehensive rezoning the legislative body failed to take into account then existing facts, or projects or trends which were reasonably foreseeable, so that the rezoning action was premised initially on a misapprehension. Boyce v. Sembly, 25 Md. App. 43, 50-51, 334 A. 2d 137 (1975); see Rockville v. Stone, 271 Md. 655, 662, 319 A. 2d 536 (1974). It is clear that there is nothing in the procedures followed by the county council which remotely fits into the category of mistake or error, as those interchangeable terms are used in the Maryland zoning cases.

This is not even a case, therefore, where the question of mistake is fairly debatable and, consequently, an affirmance of the decision denying the requested rezoning is required. What this case presents is the total absence of any evidence that there was a mistake. In short, Maryland National fell far short of meeting the heavy burden which confronted it.

(2)

Maryland National’s claim of confiscation finds no support in the record. It presented two witnesses. The first, a vice-president in charge of property management, testified as follows:

“Q. Zoned as R5, in your opinion, does this property have any reasonable value to your employer, the Maryland National Bank?
“A. No. ... Under an R5 classification I can’t conceive of Maryland National Bank having any use whatsoever for the property.
“Q. ... [D]o you have an opinion as to whether the R5 classification as imposed on this property affords a reasonable use to anyone?
“A. From a development standpoint I would seriously doubt in my mind that that piece of property, because of its configuration, because of its placement in proximity to the other commercial development, because of the transitory nature of the general neighborhood, would have any kind of development possibilities under R5.”

He further testified that Maryland National did not study the feasibility of putting the subject property to any use other than banking.

The other witness, a consultant in real estate development, planning, zoning and appraising, testified he did not believe that the subject property was:

. . suitable by reason of its size, by reason of its location, and by reason of the other uses surrounding it for an R5 use. It is certainly not suitable for single-family housing. It would not be feasible to build four single-family houses on the property without having the values inhibited by the commercial vistas in various directions.
“The property does not have a reasonable use in the R5 zone, keeping in mind a reasonable use is something that is equitable and fair, just and rational. . . .
“Q. The R5 does have other uses besides single-family residential? A. Yes, sir.
“Single-family residential is the primary use for R5. Glen Burnie Park and Southgate are zoned R5.
“The R5 category does permit accessory uses such as churches, home occupations, public park or playground, private swimming pools, private educational facilities, country clubs, I don’t think it is useful for that purpose, a medical or dental clinic of which we have already a number in the area, and particularly down near the hospital.
“I don’t believe the property is useful in that sense or that there is a need for it. ...
“Special exceptions are allou>ed in R5 for child care homes but I don’t see that as a use applicable to this property. Conversion to single family dwellings from duplexes and multi-family dwellings. I can’t see it used for a mobile home park or a nursing center.
“Q. It would be fair to say that one could physically perhaps build one of these special exception uses on this tract of ground? A. One could physically build something there, yes.” (all emphasis added).

The witness acknowledged that no study of the need for a medical or dental clinic had been made despite the location of a hospital only three-quarters of a mile away.

What this testimony amounts to is a few generalizations about economic infeasibility of the type which the Court of Appeals rejected in Stratakis v. Beauchamp, supra, 268 Md. at 654, and Rockville v. Henley, supra, 268 Md. at 476. As that Court said in Baltimore City v. Borinsky, 239 Md. 611, 622, 212 A. 2d 508 (1965):

“The legal principles whose application determines whether or not the restrictions imposed by the zoning action on the property involved are an unconstitutional taking are well established. If the owner affirmatively demonstrates that the legislative or administrative determination deprives him of all beneficial use of the property, the action will be held unconstitutional. But the restrictions imposed must be such that the property cannot be used for any reasonable purpose. It is not enough for the property owners to show that the zoning action results in substantial loss or hardship.” (emphasis in original) (citations omitted).

Accord, Rockville v. Stone, supra, 271 Md. at 663-64; Montgomery Co. Council v. Kacur, 253 Md. 220, 229, 252 A. 2d 832 (1969). Suitability and feasibility, therefore, are not the criteria for establishing confiscation in the constitutional sense.

The evidence here falls far short of showing a violation of Maryland National’s constitutional rights.

Judgment reversed; appellee to pay costs.


author: Orth, J.,

text:
    ARSHAG O. SARKISSIAN v. VERKINE SARKISSIAN
    [No. 1289,
    September Term, 1975.]

      Decided July 29, 1976.

    The cause was argued before Thompson, Moore and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals, specially assigned.

      Thomas A. Lohm for appellant.
    No brief or appearance for appellee.
   Orth, J.,

delivered the opinion of the Court.

The ultimate issue in this case is whether the Circuit Court for Montgomery County, sitting in the exercise of its ordinary chancery jurisdiction, erred in sustaining, without leave to amend, the demurrer of Verkine Sarkissian (Wife), defendant below and appellee on appeal, to the amended bill of complaint filed by Arshag O. Sarkissian (Husband), plaintiff below and appellant on appeal.

According to the amended bill of complaint filed by Husband on 22 April 1975, he and Wife, both adults at the time the action was instituted on 31 December 1974, were married on 15 February 1966 in Erivan, Armenia. No children were born of the marriage. They resided in a single family residence, owned by Husband, located at 3702 Woodbine Street, Chevy Chase, Montgomery County, Maryland. Wife took certain personal property of Husband and refused to return it. She committed an unprovoked assault on Husband’s sister-in-law and “on divers times ... attacked [Husband] without justification.” She placed an ax in her bedroom on 30 December 1974, and the next day Husband filed a bill of complaint seeking to have her enjoined from assaulting him, from taking his personal property, and from damaging his personal and real property. She removed the ax upon being served with the bill of complaint. The bill further alleged that “for many years past the conduct of [Wife] has been such as to endanger the limb and health of [Husband] so that it is unsafe and intolerable for [him] to reside in the same residence with [her]; that [he] is reluctant to vacate the residence for he feels that [Wife] would, in his absence, destroy the premises.” The bill concluded: “That the conduct of [Wife] will continue and be detrimental to the health and comfort of [Husband] and will cause irreparable damage to both the mental and physical health of [Husband] unless she is ordered by this Court to vacate the premises.” Husband requested that “[Wife] may be ordered by ex parte Injunction, Interlocutory Injunction and Final Injunction to vacate the premises .. . and she be enjoined from trespassing upon the real property of [Husband].”

An order for Wife to show cause “why she should not be restrained from assaulting [Husband] and from taking the personal property of [Husband] and from damaging the personal and real property of [Husband]” was issued upon the amended bill of complaint on 23 April 1975. On 25 April Husband filed a line requesting the Clerk to countermand the order of 23 April. On 28 April a new order was issued for Wife to “show cause, if any she has, why she should not be restrained from trespassing upon the real property of [Husband] situate at 3720 Woodbine Street.On 6 June Wife demurred to the amended bill of complaint. There was a hearing on the demurrer on 31 October. On 1 December the chancellor issued an order sustaining the demurrer without leave to amend.

In the posture of the case, it is apparent that the ultimate issue whether the court below was correct in sustaining the demurrer involves three questions, the second and third of which are contingent upon the answer to the question immediately preceding it:

1) May a wife be a trespasser as to the marital residence?
2) If a wife may be a trespasser as to the marital residence, were the facts set out in the amended bill of complaint legally sufficient to establish that she was a trespasser?
3) If a wife may be a trespasser as to the marital residence, and if the facts in the amended bill of complaint were legally sufficient to establish that she was a trespasser, did the Circuit Court for Montgomery County, sitting in exercise of its ordinary chancery jurisdiction, have authority to enjoin her from trespassing on the property?

It may be that the sole question presented by Husband — “Is a husband entitled to injunctive relief to remove his wife from the marital residence they have shared together in order to protect his property and his health and comfort?” — could encompass the three questions, but unfortunately the material points involved in them were not presented and argued below and were not briefed and argued on appeal. At the hearing below on the demurrer, Husband’s counsel simply told the court he had no legal or equitable authority “to support the position that I have set forth in this request for injunctive relief.” Counsel for Wife submitted without argument and the Court sustained the demurrer without leave to amend. Husband’s argument in his brief consists of two pages, one of which is largely taken up by iterating the facts alleged in the amended bill of complaint. Husband claims, citing Fernandez v. Fernandez, 214 Md. 519 (1957), that the Court of Appeals “has established Maryland law to be that a wife may not sue her husband at law unless a Statute specifically authorizes her to do so.” He adds, without reference to authority: “This rule precludes a husband from suing a wife at law. Therefore, neither the action of trespass nor ejectment will lie.” He gives as a further reason that ejectment will not lie, that “it is an action to try the right of possession to land, and in this instance (Husband) is in possession.” He concludes that Husband “has no remedy whatsoever at law.” He cites Blumenthal v. Monumental Security Storage, Inc., 271 Md. 298 (1974) in which the Court said, at 302: “Wholly apart from any limitation on the bringing of an action at law, it has long been recognized that either a husband or wife can sue the other in equity for the protection of his or her property.” Husband ends his argument by observing that “[s]ome authority is found for [his] claimed relief in 21 A.L.R. 745 which cites the principal case of Ireland v. Ireland, 244 Pa. 489, 90 A. 911, relative to the right of a wife to exclude her husband from the possession, use and enjoyment of the family residence or homestead owned by her.”

We assume for the purpose of decision that Husband had no adequate remedy at law, that he could not maintain an action in ejectment against her and that he could not maintain a tort action against her during coverture. See Blumenthal at 301. But it does not necessarily follow that because either spouse may sue the other in equity to protect his or her property, Husband was entitled to have an equity court ban her from the marital residence. To entitle Husband to that relief, the answer to each of the three questions we posed above must be in the affirmative. Husband does not address himself to them. See Maryland Rule 1031, § c. The argument presented by Husband provides no adequate reason to reverse the judgment of the court below. We find no persuasive authority in Ireland v. Ireland, supra, or in the Annotation in 21 A.L.R. 745 for the relief Husband seeks. We see a material distinction between a wife excluding her husband from possession of real property she owns, and a husband excluding a wife from the marital residence which ordinarily he is obliged to provide and she is obliged to accept. See Hoffhines v. Hoffhines, 146 Md. 350, 357-360 (1924).

We may decline to hear or consider oral argument on any legal proposition or question of fact not presented in the briefs. Md. Rule 1046, § f. We have no desire to usurp a party’s right or to diminish his obligation to prepare and present his case on appellate review. We shall not do so here. We consider Husband’s argument only as he presents it. It gives no authority sufficient to show that he was entitled to the injunction sought. Assuming the truth of the factual allegations in the amended bill of complaint, we find that it did not state a cause of action. The order of 1 December 1975 is affirmed.

Judgment affirmed; costs to be paid by appellant.

      . The Court of Appeals has recognised the difference between a circuit court sitting in the exercise of its ordinary chancery jurisdiction and sitting as a divorce court. Jones v. Jones, 259 Md. 886, 848-844 (1970). For the practical effects of this difference see Kapneck v. Kapneck, 31 Md. App. 410 (1976).

      . The court announced its ruling on 31 October 1975 upon the conclusion of the hearing. Husband noted an appeal on 25 November. On 1 December the court issued a written order. On 9 December Husband withdrew the appeal noted on 25 November and noted an appeal from the order of 1 December.

      . “When the propriety of an order sustaining a demurrer to a declaration without leave to amend is considered by an appellate court, it is required to assume, for the purposes of the ruling, the truth of all material and relevant facts that are well pleaded as well as all inferences which can be reasonably drawn from those well pleaded facts.” Kight v. Bowman, 25 Md. App. 225, 227 (1975).

      . “A trespasser is one who intentially and without consent or privilege enters another’s property.” Bramble v. Thompson, 264 Md. 518, 522 (1972).

      . In the light of the show eause order of 28 April 1975, it is clear that Husband sought only to enjoin Wife from trespassing upon the matrimonial domicile, 3720 Woodbine Street. He had manifestly abandoned other relief previously sought when he asked that the order of 23 April be countermanded.

      . Wife did not file a brief and did not appear at oral argument.

      . The chancellor said:
      “This is a novel approach, Mr. Lohm [Thomas A. Lohm, Esq counsel for Husband]. I really don’t know how you can go aroun and enjoin somebody from assaulting you, number one, or enjoining or evicting them, in effect, from property by injunction. There are ways to get people out of property. There is unlawful entry detainer, ejectment, there are five or six ways. The Court of Appeals has said many times those are the only ways you can get people out of property. So I just don’t see any legal basis, as you apparently concede, and, consequently, the demurrer will be sustained and without leave to amend.”

      . Husband points out that Wife has no interest in real property owned by Husband, not even by way of estates of dower or curtesy, as they have been abolished. Estates and Trusts Art., § 8-202, formerly Code, Art. 93, § 3-202.

      . See, however, Samuels, The Matrimonial Injunction, 125 New L. J. 365 (1975); Denyer, Excluding the Husband from the Matrimonial Home, 123 New L. J. 655 (1973); Glendon, Matrimonial Property: A Comparative Study of Law and Social Change, 49 Tulane L. R. 21 (1974); Karowe. Marital Property: A New Look at Old Inequities, 39 Albany L.R. 52 (1974); 27 Am. Jur. Husband and Wife, § 600 (1940); Kelley v. Kelley, 51 R. I. 173, 153 A. 314 (1931); Stone v. Guion, 223 N. C. 831, 28 S.E.2d 510 (1944); 41 C.J.S. Husband and Wife, § 41 (1944).

      . At the hearing below, counsel for Husband conceded that Husband’s fears expressed almost a year before had not been realized. The transcript reads:
      “MR. LOHM:.... I will only, and I will be very brief, just review for a moment what we have set forth here, that my client owns this real estate, he is married to the lady, Mrs. Sarkissian, and he has made certain allegations about what she has done and his fear for himself, and —
      THE COURT: Which fears have not been realized as yet?
      MR. LOHM: No, they have not, and hopefully they won’t be, but that is the only thing I can say, and on the basis of that I have asked for injunctive relief....”


text:
    JOHNNY McKAY v. STATE OF MARYLAND
    [No. 1290,
    September Term, 1975.]

      Decided July 29, 1976.

    The cause was argued before Thompson, Moore and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals of Maryland, specially assigned.

      Arnold, M. Zerwitz and George E. Burns, Jr., Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Gordon Boone, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Johnny McKay went to trial before a jury in the Criminal Court of Baltimore upon a general plea of not guilty to an indictment presenting that he committed armed robbery and seven related offenses. The trial ran a normal course to the retirement of the jury to consider their verdicts. The State presented its case. Motions for judgment of acquittal to all but the first count, charging armed robbery, the third count, charging robbery, and the eighth count, charging the use of a handgun in the commission of a crime of violence, were granted at the close of evidence offered by the State. The defense put on its case. Motions for judgment of acquittal to the three remaining counts were denied at the close of all the evidence. Counsel made their arguments to the jury, the judge instructed, and the jury retired to deliberate the verdicts.

After deliberating an hour the jury returned to the courtroom. Upon the usual inquiry by the Clerk of the Court the jury announced through its forelady that they had agreed upon a verdict of not guilty as to the first count, but as to the third count that they were unable to arrive at a verdict: “As to the third count we could not come to a unanimous decision.” At this point the judge said:

“Ladies and gentlemen of the jury, I thought I explained to you that you cannot come in with a verdict unless it is unanimous, otherwise you cannot return if you have not agreed unanimously. You must return to the jury room. If you cannot arrive at a verdict, then it is known as what is a hung jury and the entire verdict is thrown out, but you cannot come in and say you find for a certain portion of the verdict and that you cannot agree on the other portion. You must make a definite determination, a unanimous determination.”

The jury again retired, deliberated about an hour and a half and returned to the courtroom. At this point defense counsel asked to approach the bench, and there was a bench conference, at the conclusion of which defense counsel said, in open court: “I have discussed this with my client, Your Honor.” The judge requested counsel to “come back up to the bench”, and another bench conference ensued. The proceedings at these bench conferences were not recorded. When counsel returned to the trial table, the judge announced:

“Outside of the presence of the jury counsel for the Defendant, Mr. [Karl B.] Brockman, advised the Court that his client would accept a majority vote on the third count, which could not be unanimously agreed upon between the jurors. Is that correct?”

The transcript of the proceedings reads:

“MR. BROCKMAN: That is correct, Your Honor. I explained to him that a vote for acquittal or conviction means that he could be found guilty on that count. Of course, the other two counts they said they had reached a verdict on.
DEFENDANT MC KAY: Have they — have ya’ll already had the number of the vote?
MR. BROCKMAN: No, we don’t know what it is, that’s what is going to be decided now. It’s not even, it’s not six and six, I don’t think.
THE COURT: Nobody knows what the vote is. If you have more votes it’s not guilty and if you have seven to six it’s not guilty.
Let me explain it to you so that you will understand. You are asking the Court to have the jury render a verdict on this case based on a majority vote. Under the law of this State you have a right to insist upon a unanimous vote and if they do not come in with a unanimous vote you have a right for retrial, that is your constitutional right.
DEFENDANT MC KAY: What will that mean, I'll have to be tried again?
THE COURT: Yes.
DEFENDANT MC KAY: The whole trial?
MR. BROCKMAN: The whole trial.
DEFENDANT MC KAY: We’ll take what’s up.
MR. BROCKMAN: You will take what the majority is?
DEFENDANT MC KAY: Yes.
THE COURT: The only thing is that I assume what they said earlier, and they have indicated that the first count is for acquittal and there seems to be a tie-up on the third count. I do not know what the third count is, guilty or not guilty, and as a result of what happens now if they come in with a guilty verdict on the third count, then it is guilty on the third count. If they come in with a majority for guilty then it would be guilty on the third count. If the third count is a majority vote in your favor and they find for acquittal, then you will be found not guilty, that is the chance you will be taking. I want to explain everything to you because you have an absolute right under the law to have the whole trial tried all over again if you want to, and I will give you your option if you want to talk to anybody.”

McKay said he would like to talk to his lawyer and the jury were directed to return to the jury room. After McKay and his counsel conferred, there was another bench conference at defense counsel’s request. Again the proceedings were unrecorded. Then, in open court, but out of the jury’s presence, the judge queried McKay:

“THE COURT: Now, Mr. McKay, you have had an opportunity to talk to your lawyer and I think he explained the situation very clearly to you. Do you have any members of your family here with you?
DEFENDANT MC KAY: Yes, sir.
THE COURT: Do you want to talk to any members of your family?
DEFENDANT MC KAY: No, sir.
THE COURT: You do not?
DEFENDANT MC KAY: No, sir.
THE COURT: What is your option, do you want to accept a majority vote from the jury on any of the counts that they could not agree upon or do you want to have the case retried?
DEFENDANT MC KAY: Take the majority vote.
THE COURT: You want a majority vote?
DEFENDANT MC KAY: Yes, sir.
THE COURT: Do you understand what a majority vote is?
DEFENDANT MC KAY: Yes, sir.
THE COURT: I have explained it to you and your attorney has explained it to you; is that right?
DEFENDANT MC KAY: Yes, sir.”

The jury returned to the jury box and their verdicts were received:

“THE CLERK: Johnny McKay, stand up, please. Members of the jury, have you agreed upon a verdict?
THE FORELADY: Yes.
THE CLERK: Madam Forelady, how do you say, is Johnny McKay guilty or not guilty as to Indictment No. 57501019 as to the first count?
THE FORELADY: Not guilty.
THE CLERK: As to the third count?
THE FORELADY: The third count was undecided.
THE CLERK: What would the vote be as to the third count?
THE FORELADY: The count was nine for guilty and three for not guilty.
THE CLERK: The majority vote is guilty. As to the eighth count?
THE FORELADY: Not guilty.
THE CLERK: Harken to the verdict as the Court has recorded it, you say that Johnny McKay as to Indictment No. 57501019 as to the first count is not guilty, as to the third count guilty by majority vote, and as to the eighth count not guilty.”

The jury was polled and the verdict of nine for conviction, three for acquittal on the third count was confirmed. A sentence of ten years incarceration under the jurisdiction of the Department of Correction was imposed. McKay noted a timely appeal.

The basic issue for decision concerns the requirement of unanimity in criminal jury trials. Is unanimity of the jury’s verdict basic to the concept of trial by jury so as to be an imperative requirement of a legal verdict, or is it a right of the accused which he may waive?

Trial by jury was looked upon as “the glory of the English law.” It was deemed “the most transcendant privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.” 3 W. Blackstone, Commentaries *379. The elements of a trial by jury at the common law were set out in Patton v. United States, 281 U. S. 276, 288 (1930): “(1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.” “When Englishmen colonized what came to be called the United States, they brought with them their common law heritage, including the right to jury. Although later scholars have disputed the Magna Carta as the source of that right, the colonists, as did other Englishmen, appealed to that declaration for the protection of the right to trial by jury. The first ordinance passed by the Plymouth Colony in 1623 required that all criminal facts be tried by a jury of twelve honest men. In 1774, the colonies were party to the National Declaration of Rights which included the right to jury as the ‘birthright and inheritance’ of all Englishmen. Among the grievances cited in the Declaration of Independence was the frequent deprivation by the Crown of the colonists’ right to jury.” (footnotes omitted) 22 DePaul L. Rev. 635, 637 (1973). See Maxwell v. Dow, 176 U. S. 581 (1900), dissenting opinion of Mr. Justice Harlan at 605, which at 609-610 traces the history of trial by jury in England and colonial America. As early as 1367, unanimity was required under English case law, even though the particular reasons for its initial development had abated. 26 U. Miami L. Rev. 277, 279 (1971). See 2 Pollock & Maitland, History of English Law before the Time of Edward I, (2d ed. 1898, reissued by Cambridge University Press, 1968) 625.

The Constitution of the United States doubly guarantees the right to jury in criminal trials. Article III, § 2, provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . .. .” The sixth amendment declares: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ....” Patton construed the jury trial contemplated by Art. Ill and the sixth amendment. It said, at 288:

“That it means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted, is not open to question.”

Thus, as the common law jury required the unanimous verdict of twelve men, the federal jury could require nothing less. That is the rule today. See Maxwell v. Dow, supra; Thompson v. Utah, 170 U. S. 343 (1898). It seemed, however, that although twelve member juries and unanimity were constitutionally required in federal courts, they were not necessities in state courts. Maxwell held that the states were not bound by the mandates of the United States Constitution; due process did not require states to have the same provisions as required in federal courts by the first eight amendments, and the privileges and immunities clause did not prohibit the states from having different jury provisions from those required by the federal constitution. 176 U. S. at 595. Selective incorporation, making the Bill of Rights applicable to the states through the fourteenth amendment eroded this position. The non-incorporation views of Maxwell were repudiated in Duncan v. Louisiana, 391 U. S. 145, 155 (1968). Duncan specifically held that the sixth amendment provision for trial by jury was applicable to the states. Id., 154-155. The note in 43 U. Cin. L. Rev. supra, at 586-587, points out that ordinarily when the Court held that a given amendment was applicable to the states, the federal standards also applied. See for example, Aguilar v. Texas, 378 U. S. 108 (1964); Malloy v. Hogan, 378 U. S. 1 (1964); Mapp v. Ohio, 367 U. S. 643 (1961). Thus, it seemed that states would be required to have twelve member juries rendering unanimous verdicts. Not so. Williams v. Florida, 399 U. S. 78, 86 (1970) held that the fourteenth amendment did not require a state to have a twelve member jury. Williams left open the question of whether a unanimous verdict would be required in the state courts by the due process clause. The question was resolved in the companion cases of Apodaca v. Oregon, 406 U. S. 404 (1972) and Johnson v. Louisiana, 406 U. S. 356 (1972). Apodaca was convicted by a vote of eleven to one, the Oregon constitution permitting the jury to render a verdict with the concurrence of ten jury members. Johnson was convicted by a vote of nine to three, under a Louisiana constitutional provision allowing verdicts with the concurrence of nine jurors. Each argued that due process required unanimity. The Supreme Court first looked to the history of unanimity and of the sixth amendment and, as in Williams, was unable to divine the “intent of the Framers” as to what is meant by a jury. Apodaca, at 407-410. It looked, therefore, to other than purely historical considerations and focused upon the function served by the jury in contemporary society. In Duncan, 391 U. S. at 156, the Court said that the purpose of trial by jury is to prevent oppression by the government by providing a “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” “Given this purpose,” the Court said in Williams, 399 U. S. at 100, “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen ... .” Apodaca concluded that a “requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment.” 406 U. S. at 410. Even in cases where unanimity is not required, the judgment will still be made by the accused’s peers. Johnson dealt with the argument that unanimity also served the purpose of giving substance to the reasonable doubt standard required by the due process clause in criminal cases. This argument is bottomed on the entity theory as to jury verdicts. The entity theory suggests that the jury returns its verdicts only as a whole, and that the reasonable doubt of one juror creates a reasonable doubt in the whole jury. Thus unanimity is required. Johnson rejected this. It apparently followed the theory which views the jury as composed of individuals. The doubt of one juror does not permeate the entire jury’s verdict. The reasonable doubt standard is retained but the verdict of less than unanimity lessens the number of jurors who must be convinced that the standard has been met. “In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters’ views, remains convinced of guilt. That rational men disagree is not in itself equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable-doubt standard.” 406 U. S. at 362. The Court pointed out that even in the federal system where unanimity is required, a new trial is given if the jury cannot reach a verdict. If the entity theory were followed, one juror’s reasonable doubt would permeate the entire jury and the defendant would be acquitted. 406 U. S. at 362-363.

What Johnson and Apodaca teach is that there is a double standard for a jury trial. The federal jury remains as at the common law, requiring a unanimous verdict. The states, on the other hand, are free to experiment with the jury within the confines of due process. It is clear that in criminal trials, state courts are permitted to have less than twelve jurors, and the jury may render non-unanimous verdicts.

We have seen that the states are not prohibited by the federal constitution from having a jury in a criminal trial which does not meet the standards required by that constitution for a federal trial. That is, within the confines of due process, a state may provide for a jury in a criminal case which consists of twelve or less members whose verdict need not be unanimous. We look now to see if Maryland has so provided.

The Maryland Constitution of 1776, Art. III, provided for trial by jury according to the course of the common law. See Apodaca v. Oregon, supra, n. 3 at 408. This was retained in subsequent constitutions. The Declaration of Rights to the Constitution of Maryland adopted in 1867 declared by Article 5 “That the Inhabitants of Maryland are entitled to . the Common Law of England, and the trial by Jury, according to the course of that Law . . . .” We have seen that the common law required jury unanimity in criminal trials. Art. 21 of the Declaration spells it out: “That in all criminal prosecutions, every man hath a right... to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.”

The Maryland constitutional provisions with respect to trial by jury have two aspects. The first concerns the obtaining of a jury trial. The second concerns the unanimity of the verdict of the jury obtained. The first bestows a “right.” Art. 21 expressly provides that in criminal prosecutions every man “hath a right” to a trial by jury. The right so bestowed may be waived. In State v. Zimmerman, 261 Md. 11, 12 (1971), the Court of Appeals said: “We do not consider whether an accused may elect a court trial, thereby waiving a jury trial. That is established.” Maryland Rule 741 provides for the waiver: “An accused may elect to be tried by jury or by the court.”

The Maryland constitution is silent as to the number of jurors. Under the common law, as we have seen, a jury must consist of twelve persons. But the common law may be changed within constitutional limitations, by statute, rule or judicial decision, and, as we have indicated, the federal constitution does not require a jury in a state criminal case to consist of twelve members. Maryland has tempered the common law in this regard by rule. Rule 743, although affirming that a jury in a criminal cause shall consist of twelve persons, permits the parties, at any time before verdict, to stipulate in writing with the approval of the court that a jury shall consist of any number less than twelve.

The second aspect of Art. 21 regarding a jury trial concerns the unanimity of the jury’s verdict. After bestowing the “right” to a trial by jury, the Article continues, “without whose unanimous consent he ought not to be found guilty.” This phrase does not bestow a right but imposes a mandate. Over a century ago the Court of Appeals said in League v. State, 36 Md. 257, 266 (1872): “to make a legal verdict all the jurors must agree.” Cf. Sherrill v. State, 14 Md. App. 146, 157-158 (1972). This view is affirmed by Md. Rule 758, § a, which flatly asserts: “The verdict shall be unanimous ....” This is in accord with the common law. Not only has Maryland not departed from the common law requirement of jury unanimity but it has expressly affirmed it by constitutional provision implemented by rule. See Williams v. State, 60 Md. 402, 403 (1883); Givens v. State, 76 Md. 485, 488 (1893); Coby v. State, 225 Md. 293, 299 (1961); Maloney v. State, 17 Md. App. 609, 622 (1973). We point out that although Md. Rule 544 pertaining to juries in civil causes permits parties to stipulate that a verdict of a stated majority of the jurors shall be taken as the verdict of the jury, see note 12 supra, no such provision appears in Md. Rule 758, § a with regard to juries in criminal causes.

We summarize. In Maryland criminal trials the accused may waive a jury trial and elect to be tried by the court. By stipulation of the parties and approval of the court, a jury in a criminal cause may consist of any number less than twelve members which is consistent with due process of law. But no matter what the make-up of the jury, the verdict must be unanimous.

Having found that unanimity is an imperative requirement of a legal verdict in a Maryland criminal prosecution before a jury, and not a right of the accused which he may waive, the verdict under the third count of the indictment filed against McKay was illegal because it was not unanimous. We hold that the trial court had no jurisdiction to receive it. See Md. Rule 1085. The judgment must be reversed.

The verdicts of not guilty on the first and eighth counts represented the unanimous consent of the jurors. They were hearkened and recorded and McKay stands acquitted under them. He may be retried under the third count on which the jury in fact “hung.” He may not be retried under the first and eighth counts of which he was acquitted by the jury or on the second, fourth, fifth, sixth and seventh counts of which he was acquitted by the court upon grant of motion for judgment of acquittal. See Pugh v. State, 271 Md. 701 (1974) and cases cited therein.

Although McKay told the judge at the punishment stage of the proceedings that he did not desire to file a motion for a new trial, he subsequently did file such motion prior to noting an appeal. The record before us does not disclose a disposition of the motion. He also applied for a review of sentence, and a sentence review panel ordered that the sentence remain unchanged. But thereafter he filed two motions for reconsideration of the sentence. These apparently were not acted upon. In the light of our decision, any questions arising from the failure to dispose of the motion for a new trial or the applications for reconsideration of sentence are moot.

Judgment reversed; case remanded for a new trial.

      . After the verdict was rendered, defense counsel told the court that he had informed McKay of the rights to file a motion for a new trial, to take an appeal and to request a review of sentence. McKay informed his counsel that he did not desire to move for a new trial and would like to be sentenced at this time. The judge observed: “I can sentence him at this time or we can obtain a pre-sentence report.” McKay stated through his counsel that he would like to be sentenced “right now.” The judge complied with this request.

      . The case note points out, id: “Unanimity was first required in England during the early development of the present day jury system. Originally, the jury consisted of twelve witnesses who would testify for the winning party. Naturally, such testimony had to be unanimous.” The note quotes P. Devlin, Trial by Jury 48 (1956): “[W]hen the twelve witnesses were translated into judges [jurors], the unanimity rule, notwithstanding that its original significance had then departed, remained with them.”

      . The Court in Maxwell left no doubt that “jury” as used in the United States Constitution meant twelve persons who could render verdicts only by unanimous consent. 176 U. S. at 586. The dissenting opinion of Mr. Justice Harlan agreed with this interpretation. Id., at 609-611. Unanimity was not the issue in Thompson but the Court used strong dictum indicating that unanimity was required in criminal cases. 170 U. S. at 355. See Note, Smaller Juries and Non-Unanimity Analysis and Proposed Revision of the Ohio Jury System, 43 U. Cin. L. Rev. 583, 584 n. 13, 585 n. 19 (1974).

      . In Williams the Court did not find the framers’ intent clear after reviewing the history of the sixth amendment, and concluded that none of the three basic purposes of a jury — to prevent government oppression, to promote community participation, and to share responsibility in the guilt-finding process — were seriously hampered by a lesser number of jurors. The Court did not indicate a minimum number of jurors that would be required, although it said that six was above the undefined minimum. 399 U. S. at 91, n. 28. The number must be large enough to promote group deliberation and to allow for participation of a reasonable cross-section of the community. Id., at 102.

      . The Court observed, 399 U. S. at 100, n. 46:
      “We intimate no view whether or not the requirement of unanimity is an indispensable element of the Sixth Amendment jury trial. While much of the above historical discussion applies as well to the unanimity as to the 12-man requirement, the former, unlike the latter, may well serve an important role in the jury function, for example, as a device for insuring that the Government bear the heavier burden of proof.”

      . Mr. Justice White’s opinion for the Court in Apodaca was a plurality opinion. It was concurred in by Mr. Chief Justice Burger, Justices Blackmun and Rehnquist. Justice Powell concurred in the judgment only. Four dissenting opinions were filed. The Court in Johnson divided 5-4.

      . The Court also rejected the argument that less than unanimity would lead to disregard of minority views. It said, at 361:
      “We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor or acquittal would either have his arguments answered or would carry enough other jurors with him to prevent. conviction. A majority will cease discussion and out-vote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose — when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position.”

      . It appears from the opinions filed in Johnson and Apodaca that Justices White, Burger, Blackmun and Rehnquist believed that unanimity is not required under either the state or federal systems, but Justices Marshall, Douglas, Brennan and Stewart were of the opinion that unanimity is required in both. Mr. Justice Powell thought that the sixth amendment requires jury unanimity but should not be applied to the states. The effect of this four-four-one split is that five Justices thought that unanimity should be required in federal cases and that five Justices thought that unanimity should not be required in state cases.
      As is indicated supra, we found most helpful and freely used the enlightening discussions of the constitutional requirements of unanimous jury verdicts in criminal trials in the Note in 43 U. Cin. L. Rev. 583 (1974), in 22 DePaul L. Rev. 635 (1973), and in 26 U. Miami L. Rev. 277 (1971).

      . Apodaca, 406 U. S., n. 2 at 407, traces the origins of the unanimity rule.

      . See Smith v. State, 17 Md. App. 217, 219-229 (1973), cert. den., 269 Md. 766 (1973).

      . The right to a jury in the federal court may also be waived. In Patton v. United States, supra, the Court said, at 298, that Art. 3, § 2 of the Constitution of the United States “is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement.”

      . Md. Rule 544 governs juries in civil causes: “The parties may stipulate that the jury shall consist of any number less than twelve, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” See Md. Rule 1, § a 1.

      . The American Heritage of the English Language (1969) states that “ought” used as an auxiliary verb followed by an infinitive with to indicates: “(1) Obligation or duty ...; (2) Expediency or prudence ...; (3) Desirability----” We think it obvious that as used in Art. 21 “ought” indicates “obligation or duty.”

      . No constitutional imperative of jury unanimity carries over to panels of judges sitting as the trier of fact. League at 266; Sherrill at 157.

      . We observe that even if the unanimity of the jury were a right which could be waived by a defendant, we would have serious doubt that McKay’s actions constituted a valid waiver. The classic definition of “waiver” was enunciated in Johnson v. Zerbst, 304 U. S. 458, 464 (1938) as “an intentional relinquishment or abandonment of a known right or privilege.” The determination of whether there has been an intelligent waiver “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. McKay sought to be bound by a majority verdict of the jury because he was told by the court that the alternative was “to have the whole trial tried all over again.” He obviously did not want to be retried on the armed robbery count carrying a heavier punishment upon conviction. But once the jury, by unanimous verdict, acquitted him of that offense, he could not be retried thereon. In the circumstances, we do not believe that McKay can be said to have made an intelligent waiver.

      . We do not reach whether the court may properly receive verdicts as to counts on which the jury agrees and declare a mistrial as to other counts on which they do not agree. McKay for obvious reasons, does not raise the point, and the State does not mention it.