author: Thompson, J.,

text:
    WILLIAM WILSON BRATTON et al. v. SARAH PAYNE WILSON HITCHENS et al.
    [No. 1277,
    September Term, 1978.]

      Decided September 10, 1979.

      The cause was argued before Thompson, Lowe and WlLNER, JJ.

      Craig P. Morton for appellants.

      Thomas F Comber, III, with whom were Constable, Alexander & Daneker on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

On April 25, 1978, William Wilson Bratton, et al., appellants, filed a petition in the Circuit Court for Cecil County for a declaratory judgment against Harry L. Wilson, III and Sue Wilson Bedyk, the appellees. The chancellor held that the appellees each owned an undivided l/30th fee simple interest in the real estate in question and the appellants owned the remainder. The appellants claim they own the entire property as the holders of legal title thereto or, in the alternative, by virtue of adverse possession. In accordance with Md. Rule 1028 g the parties have reached an agreed statement of facts which are consistent with the chancellor’s findings. With minor editing we adopt the parties’ statement as our own.

Edward C. Wilson died May 16, 1934, owning the subject parcel of land (Wilson Woodland) located in Cecil County, Maryland. He devised to his wife, Annie Wilson, a life estate in other real property in the Town of North East (North East Property) and bequeathed $6,000 to her in lieu of her dower or legal share in his real and personal property. Upon her death, the North East Property was to go to a nephew, Harry L. Wilson, Jr. The decedent also bequeathed $4,000 to his sister, Bertha W. Bratton and $3,000 to his brother, Walter G. Wilson. The rest and residue of the estate including, but not specifically referring to, the Wilson Woodland was left to his brother, Harry L. Wilson. The will directed the executor, Harry L. Wilson (executor), to convert all of Edward Wilson’s personal property into cash to pay the bequests.

The First and Final Account of the executor shows the personal property to be valued at $11,198.83, of which $10,487.83 was cash and $711 was other property. After costs and payment of the pecuniary bequest to Annie Wilson, $759.53 remained. In addition to the personal property, an inventory dated July 17, 1935, shows that the North East Property was appraised at $2,500; and that the Wilson Woodland, an unimproved tract of woodland situate centrally in Elk Neck was appraised at $750. The North East Property was distributed to Annie Wilson, but no deed was executed.

The only assets remaining in the estate were the $759.53 in cash and the Wilson Woodland, valued at $750, while there were unsatisfied bequests to Bertha Bratton of $4,000 and Walter Wilson of $3,000. The residuary beneficiary Harry L. Wilson received nothing other than his executor’s commission. The Orphans’ Court on May 6, 1936, passed an Order distributing the $759.53 remaining in the hands of the executor to Bertha Bratton, it appearing to the Court that Walter Wilson was indebted to the estate in an amount in excess of his 3/7 share of the $759.53. No deed was ever executed or recorded conveying the Wilson Woodland to Bertha Bratton, either by the executor or by Harry L. Wilson individually as residuary legatee.

The Wilson Woodland was listed in the tax records under Mrs. Edward Wilson the year following Edward’s death and then in the name of Edward Wilson, care of Bertha Bratton, until 1947-1948 when the tax records appear only in the name of Bertha Bratton. The testimony indicates that Bertha Bratton paid the real estate taxes from the date of Edward Wilson’s death until her death in 1954. Her heirs have henceforth paid the real estate taxes.

In 1944, Harry L. Wilson, the residuary legatee, died intestate. Any interest which he may have had in the Wilson Woodland passed by the laws of intestacy, one third to Harry L. Wilson’s wife, Katharine Wilson, and two thirds to the children of Harry L. Wilson or their heirs. Nine of Harry L. Wilson’s ten children were alive at his death. The tenth, Harry L. Wilson, Jr., father of respondents Sue Bedyk and Harry L. Wilson, III, had died in 1937. Shortly after Harry L. Wilson’s death, another of his sons, James Wilson, died intestate and without wife or descendants. Any interest James Wilson had passed to his mother, Katharine. Any interest of respondents in the Wilson Woodland was received as representatives of their father, Harry L. Wilson, Jr. Respondent Harry L. Wilson, III, was seven years old, and respondent Sue Bedyk was seventeen years old at the time of Harry L. Wilson’s death.

Harry L. Wilson died intestate, and no estate file was opened in the office of the Register of Wills for Cecil County. No inheritance tax was paid with regard to any portion of any estate he may have had.

In 1946 when William Wilson Bratton, the son of Bertha Bratton, started to practice law in the office of William J. Bratton (who had been the attorney for the estate of Edward C. Wilson), William J. Bratton said to him: “I am not sure the estate of Uncle Ed was ever finally settled. I am not sure your mother got a deed for the property that she has down in Elk Neck.” William J. Bratton also suggested that he get some form of deed releases from his cousins and from his Uncle Walter in favor of his mother. Appellant, William Wilson Bratton, had no knowledge that his mother did not. have record fee simple title in the Wilson Woodland until William J. Bratton called it to his attention.

Thereafter on August 22, 1946, Walter G. Wilson, brother of Edward C. Wilson, for nominal consideration, deeded all of his interest in law and equity in the Wilson Woodland and all of his right to the pecuniary legacy bequeathed to him “together with the right to impress the land aforesaid for the payment of. said Legacy,” under the will of Edward C. Wilson to Bertha Bratton.

On September 6, 1947, Katharine H. Wilson (widow of Harry L. Wilson) and six of her children, for nominal consideration, did “grant and convey unto the said Bertha Wilson Bratton, her heirs and assigns, all their interest, both at law and equity, in and to the Wilson Woodland and did “further assign transfer and set over unto the said Bertha Wilson Bratton, all their right, title, claim and interest, at Law and in Equity, as Heirs-at-Law or Devisees of the late Harry L. Wilson, to the residuary devise made to the said Harry L. Wilson, in the Will of the said Edward C. Wilson.”

One of the grantors of the deed, Robert C. Wilson testified: “I myself thought it was a straightening out of a line between the old Chesapeake property and the next property down and to that extent I went ahead and signed. But I certainly wouldn’t have, I don’t believe, signed away without some kind of further knowledge if I’d had any idea that I was signing away on some two hundred fifty acres of land. Now, this is only as my memory tells me. I can’t, it’s a long time ago, and all I can remember is what at that time I think I must have thought.” Another grantor of the September 6, 1947, deed, Walter G. Wilson, son of Harry L. Wilson (as distinguished from Walter G. Wilson, brother of Harry L. Wilson mentioned above) stated that: “I was not aware that I was signing a deed for two hundred and fifty or sixty acres.”

Robert C. Wilson, a son of Harry and Katharine, was twenty years old in 1934, at the time of Edward C. Wilson’s death and resided in Cecil County. In 1939 he moved to Baltimore but he returned to Cecil County every week or two and visited all around the county. Robert C. Wilson never visited or went on the Wilson Woodland.

On April 22, 1953, two more of the children of Harry L. Wilson, who were minors at the time of the 1947 deed, conveyed to Bertha Bratton all of their interest in the Wilson Woodland for nominal consideration. This deed contained the same language as the September 6,1947, deed quoted above. All three deeds were recorded among the land records of Cecil County.

William Wilson Bratton testified that the interest of Sue Bedyk and Harry L. Wilson, III, if any, as heirs of Harry L. Wilson, Jr., the deceased son of Harry L. Wilson, were overlooked. In 1976 and 1977, William Wilson Bratton contacted them by telephone and by letter and submitted to them drafts of deeds conveying their possible interests in the Wilson Woodland to himself and his children, that is, the appellants.

Sue Bedyk and Harry L. Wilson, III, both testified that they had no knowledge of the Wilson Woodland or that it had ever been in their family or that they possibly had an interest in the property until William Wilson Bratton contacted them in December 1976, January 1977 and February 1977 and sought to have them sign a deed to the appellants to clear a cloud on the title.

William Wilson Bratton testified that his father plotted the Wilson Woodland at some time between Edward Wilson’s death and Christmas 1936, and that on a number of occasions before December 1936, he, his brother and parents walked the lines of the property to determine exactly where the property lines were and to determine if anyone was encroaching on what they thought was Bertha Bratton’s land. Appellant William Wilson Bratton would visit the property two or three times a year. His mother, Bertha, did not go to the property as frequently as he or his brother did. Bertha Bratton gave permission to persons to cut laurel off the Wilson Woodland. Other persons also cut laurel without permission.

William Wilson Bratton testified that before Bertha Bratton’s death in 1955, people had been permitted to cut firewood on this property, and this practice was continued after her death. Correspondence was introduced showing occasional sales of small amounts of timber from 1950 forward. The Wilson Woodland was included in her Maryland probate estate, and inheritance tax was paid upon the land. Appellant William Wilson Bratton and Francis H. Bratton, her sons, as residuary devisees, received Bertha Bratton’s interest in the Wilson Woodland.

On June 4, 1959, William Wilson Bratton and Francis H. Bratton granted a sixty-foot right of way across the woodland to Penn-Mar Sand and Gravel Corporation. The deed was recorded among the land records of Cecil County. Penn-Mar cut trees and made a gravel roadway through the property which was used by trucks to remove sand and gravel from another piece of property.

In 1961, Assistant District Forester John Michel of the Maryland Department of Forest and Parks examined the woodland and submitted recommendations to William Wilson Bratton.

Various negotiations were also entered into by the Cecil County Commissioners and prospective purchasers and lessees of the Wilson Woodland with William Wilson Bratton and Francis H. Bratton concerning the use, purchase and renting of the land. No such sales or leases were ever finalized and recorded except the Penn-Mar right of way referred to above.

William Wilson Bratton acquired all of his brother’s interest in the Wilson Woodland by two deeds dated December 29, 1972 and June 9, 1974, respectively, and recorded among the land records of Cecil County. All income and expenses of the Wilson Woodland after Bertha Bratton’s death were credited to or paid from the account of William Wilson Bratton and Francis H. Bratton until William Wilson Bratton purchased Francis H. Bratton’s interest.

In 1972 William Wilson Bratton hired APR Associates to survey the Wilson Woodland. This survey was completed in 1975. Presently, an agreement is under negotiation with York Building Products Company, Inc., for the removal of gravel from the Wilson Woodland. William Wilson Bratton also rented hunting rights on the property for the last three or four years. No one has ever resided on, fenced or farmed this land, it being mostly scrub timberland with deposits of gravel.

On December 22, 1976, and November 22, 1977, William Wilson Bratton conveyed fractional interests in the Wilson Woodland to his three children, Susan P. Bratton, Kathleen W. Bratton and William W. Bratton, Jr., for estate planning purposes. These deeds were recorded among the land records of Cecil County.

The chancellor first ruled that the appellants had failed to establish their paper title. With this ruling we are in agreement. The legal interest, if any, of the appellees was not conveyed to the appellants by deed or by court proceedings. The appellants argue that under former Md Code, Art. 24, § 40, later codified as Md. Est. and Trusts Code Ann. § 9-103, the Wilson Woodland, being a residuary devise, was chargeable with the unpaid balance of Bertha Bratton’s pecuniary legacy. Be that as it may, the appellants are not claiming a charge on the property but the property itself. We agree with the chancellor that legal title, insofar as the proposition is relevant to this dispute, can pass only by virtue of legal proceedings or a deed. DiTommasi v. DiTommasi, 27 Md. App. 241, 248, 340 A.2d 341 (1975); Md. Real Prop. Code Ann. § 5-103. We agree with appellants, however, that the chancellor applied incorrect legal principles in determining the question of adverse possession.

The elements of adverse possession are that the possession must be actual, hostile, open, notorious, exclusive, continuous, and under claim of title or ownership for a period of twenty years. East Washington Ry. Co. v. Brooke, 244 Md. 287, 223 A.2d 599 (1966). The chancellor stated in his opinion that the adverse possession in this case had to be established from April 26,1958; that is, 20 years prior to the filing of the suit. We know of no authority for that proposition and the court provided none. On the contrary, the cases indicate that the period of adverse possession begins to run when all the elements coalesce. See Phillips v. Insley, 113 Md. 341, 77 A. 850 (1910) and Campbell v. Fletcher, 37 Md. 430 (1873). In the latter case the Court specifically pointed out that in order to maintain an action for ejectment an adverse possessor need not have been in the actual occupancy or possession of the property within 20 years before the institution of the suit. It is sufficient if the necessary elements coexisted for any 20 year period. In addition, as stated in Gore v. Hall, 206 Md. 485, 491, 112 A.2d 675 (1955):

“[W]here there is privity of estate between the successive parties in possession, the possession of such parties may be tacked so as to make the twenty years required by the Statute of Limitations. The law is clear that such privity may be created by a sale and conveyance and possession under it as well as by descent. Hanson v. Johnson, 62 Md. 25, 31, 32; 2 Alexander’s British Statutes, Coe’s Ed., 612, 613.”

In the present case the elements of adverse possession commenced at least as early as 1938, as found by the chancellor, through the claim of Bertha Bratton, appellants’ predecessor, and continued to the present time.

The chancellor made perhaps an even more serious error in applying the principles of adverse possession as between cotenants to the evidence adduced at trial. It is true that the law presumes that possession by one cotenant is possession by the other and, therefore, in order to establish adverse possession by one cotenant against another it is necessary to rebut this presumption by proving an actual ouster. “And while the ouster need not have been accompanied by positive force, it must have been actual, and be established by acts or declarations brought home to the knowledge of the cbtenant.” Ross v. Phillips, 148 Md. 165, 167, 129 A. 21 (1925). In the present case, however, appellants’ predecessor, Bertha Bratton, entered on the land not as a cotenant or as a coparcener but under a claim of sole ownership. It was not until 1946 that she could have become a cotenant with the descendants of Harry Wilson (including appellees herein) by virtue of the quitejaim deeds. Thus, the adverse possession which was found to have commenced prior to that year, was begun adversely to all the world, the present appellees included, and the subsequent quitclaim deeds did not bring into operation the rule just discussed.

Where occupation of the property commenced adversely under a claim of sole ownership, the adverse nature of the possession is not inconsistent with the act of obtaining

quitclaim deeds from less than all of the legal title holders. As stated in Annot., 82 A.L.R. 2d 5, 172:

“Ordinarily, if the possessor took sole possession of the premises as exclusive owner prior to the time when the cotenancy arose, his continued sole possession under a claim of exclusive ownership after the cotenancy arose is adverse to his cotenants.”

This rule is sound because an adverse claimant seeking or securing a quitclaim deed is usually simply trying to avoid possible litigation. Annot., 125 A.L.R. 825.

We disagree with appellees’ argument that they were entitled to claim the benefits of disability due to their minority during part of the period of possession. Gump v. Sibley, 79 Md. 165, 28 A. 977 (1894) stated the well-established rule that when a statute of limitations relative to adverse possession has begun to run against a party, “it is not suspended by his death, nor by the supervention of infancy, coverture or other disability; but it has become a bar against all persons claiming under him.” 79 Md. at 169. Compare Wickes v. Wickes, 98 Md. 307, 56 A. 1017 (1904) in which the period of limitations was extended because the true owner was a minor at the time the adverse possessors took possession. In this case, Harry L. Wilson, the grandfather of the two appellees, was under no disability at the time the appellants’ ancestor made claim to the property. The period of limitations was not extended because thereafter the appellees as infants inherited an interest in the property.

Finally, the chancellor erred in failing to consider the character and locality and the ordinary uses and purposes of the particular property in question. We refer particularly to a line of cases in Maryland beginning with Sadtler v. Peabody Heights Co., 66 Md. 1, 10 A. 599 (1886) in which the Court said:

“In determining the question, whether one has an actual possession of property, we must take into consideration its character and locality, and the uses and purposes for which it is naturally adapted, for the possessory acts over an outlying and uncultivated piece of land, may be proved by acts of ownership somewhat different from what will be required in regard to land under enclosure and in actual cultivation.
“Besides all this, they have regularly paid the taxes on the property in dispute from the time of taking possession of it, 1861, to the present time. Now the mere payment of taxes may not in itself be sufficient to prove an adverse possession, but when taken in connection with the open and public acts of ownership exercised over the property by the appellants, it is a pregnant fact to be considered in determining the adversary possession of the appellants. ” Id. at 5, 7. (Emphasis added.)

In applying these principles we must be careful to note that cutting of timber and payment of taxes are not sufficient in themselves to prove adverse possession. Goen v. Sansbury, 219 Md. 289, 149 A.2d 17 (1959). Both cutting of timber and payment of taxes are nonetheless potent facts to support adverse possession.

We think the modern view of adverse possession was well summarized by Judge Stedman Prescott in Blickenstaff v. Bromley, 243 Md. 164, 220 A.2d 558 (1966), in which the Court said:

“Actual, Open and Notorious, and Exclusive Possession.
“We think we may conveniently consider these factors together. Formerly, in Maryland, an actual enclosure was necessary in order to sustain a claim of adverse user, Thistle v. Frostburg Coal Co., 10 Md. 129, Lurman v. Hubner, 75 Md. 268, but since the passage of what is now Code (1957), Article 75, § 33, this is no longer a prerequisite.
“There is a well-recognized principle relative to the actual possession in adverse-possession cases to the effect that the character, location, and use of lands vary, and the type of possessory acts necessary to constitute actual possession in one case may not be essential in another. This Court has consistently given effect to the principle. Judge Hammond, for the Court in Goen v. Salisbury, supra, said:
‘It is true that in determining whether there has been actual possession of property, there must be considered its character and locality, and the uses and purposes for which it is naturally adapted, since possessory acts of an outlying and uncultivated piece of land may be proved by acts of ownership somewhat different from those required with regard to land under enclosure and actual cultivation.’
“See also Bloodsworth v. Murray, 138 Md. 631, 645, and Gunby v. Quinn, 156 Md. 123, 130, both involving swampland, and Hub Bel Air, Inc. v. Hirsceh, 203 Md. 637.
“After considering the character of the land and the attendant circumstances of the case, we think the possessory acts of dominion on the land by the Blickenstaffs, their licensees, and their predecessors in title were sufficiently pronounced and continuous in nature to charge the owners of the Bromley property with notice that an adverse claim to the property was being asserted.”
“We, therefore, hold that the possession of the Blickenstaffs and their predecessors was actual.
“Little need be added to show that the possession was ‘open and notorious.’ In Bishop v. Stackus, supra, this Court stated that, in general, it may be said that those acts which go to make possession actual, likewise suffice to make it visible and notorious. In the instant case, the testimony is undisputed that the entire community, for a period far exceeding 20 years, considered the corner to be owned by the Blickenstaffs and their predecessors. Even Mr. Hoffman, whose family at one time owned the Bromley property, testified that he believed the Blickenstaffs’ predecessor owned the parcel. We think and therefore hold that the possession was open, visible and notorious, and under claim of title.
“This brings us to a consideration as to whether the possession was ‘exclusive.’ In 3 Am. Jur., 2d, § 50 Adverse Possession, it is stated:
‘In order to ripen into title, adverse possession must be exclusive, that is the claimant must hold possession of the land for himself, as his own, and not for another. * * *. Indeed “exclusive possession” simply means that the disseisor must show an exclusive dominion over the land and an appropriation of it to his own use and benefit. An adverse claimant’s possession need not be absolutely exclusive, however; it need only be a type of possession which would characterize an owner’s use.’
“We find this statement to be supported by the cases cited, and it is consistent with the previous holdings of this Court. Blanch v. Collison, 174 Md. 427; Bishop v. Stackus, supra. Compare Wanex v. Hurst, 188 Md. 520; Gittings v. Moale, 21 Md. 135; Thistle v. Frostburg Coal Co., 10 Md. 129.
“Hostility of the Possession.
“Judge Horney, for the Court, quite recently stated the meaning of ‘hostility’ in adverse possession cases in this manner: ‘The “hostility” essential to acquisition of title by adverse possession does not necessarily import enmity or ill will, but rather that the claimant’s possession be unaccompanied by any recognition, express or inferable from the circumstances, of the real owner’s right to the land.’ Hungerford v. Hungerford, 234 Md. 338, 340. See also Clayton v. Jensen, 240 Md. 337.” 243 Md. 170-74.

What is continuous also depends greatly upon the type of premises. Freed v. Cloverlea Associations, 246 Md. 288, 228 A.2d 421 (1967). Uninterrupted possession does not require actual occupancy where the property does not lend itself to such use. United States v. Fullard-Leo, 331 U.S. 256, 67 S. Ct. 1287, 91 L. Ed. 2d 1474 (1947).

We think the appellants in the agreed statement of facts and in the chancellor’s findings of facts established that they and their predecessors were in actual, hostile, open, notorious, exclusive, continuous possession of the disputed property under a claim of right for a period of twenty years.

Decree reversed.

Appellees to pay the costs.

      . Sarah Payne Wilson Hitchens was also a party defendant but it was determined that she had no interest in the property. She did not appeal.


source: Caselaw Access Project

license: Public Domain

text:
    ALBERT L. NISTICO v. THE MOSLER SAFE COMPANY et al.
    [No. 1360,
    September Term, 1978.]

      Decided September 10, 1979.

      The cause was argued before Thompson and Wilner, JJ., and James S. Getty, Associate Judge of the Fourth Judicial Circuit, specially assigned.

      Peter Parker and Harold T. Flanagan, Jr., for appellant.

      Pamela P. Wassmann, with whom were Semmes, Bowen & Semmes on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Albert L. Nistico, appellant, filed a declaration in the Circuit Court for Howard County against appellees Mosler Safe Company and its agent, Ronald Barnett, seeking damages for an alleged defamation. Appellees demurred to the declaration on the grounds that the statements attributed to them were not actionable, that no special damages were alleged, and that the suit was barred by a collective bargaining agreement to which Mosler and appellant’s labor union are parties. The trial court sustained the demurrer on the last mentioned ground. Nistico contends that the demurrer should have been overruled. Appellees contend that the court was not only correct in sustaining the demurrer on the basis of the contract but also would have been correct in sustaining it on either of the other two grounds.

In ruling on a demurrer we must accept as true all well-pleaded facts in the declaration and any reasonable inferences which may be drawn therefrom. Schwartz v. Merchants Mtge. Co., 272 Md. 305, 322 A.2d 544 (1974). Only those matters which appear on the face of the declaration and its supporting documents may be considered. Hall v. Barlow Corp., 255 Md. 28, 255 A.2d 873 (1969); Edelstein v. Nationwide Mut. Ins. Co., 252 Md. 455, 250 A.2d 241 (1969). Applying these principles to the present case we assume the following set of facts, drawn from the allegations of the declaration and its accompanying documents, for the purpose of ruling on the demurrer:

The Mosler Safe Company was engaged in the business of installing, constructing, and servicing safes, bank vaults, safe deposit boxes, and other items of a similar nature. Nistico has been a member in good standing of Local #16, International Association of Bridge, Structural and Ornamental Iron Workers, A.F.L.-C.I.O., for eight years, and is now a specialist in the installation, construction, and service of the devices in which Mosler deals. For approximately three years prior to the time of the wrongs herein complained of, Nistico had been periodically employed in his area of expertise by Mosler.

On January 18,1977, Nistico, as a member of the Collective Bargaining Committee of Local #16, visited a branch of Fidelity Federal Savings & Loan Association, and a branch of Baltimore Federal Savings & Loan Association, and propounded various questions to employees of these financial institutions concerning their safes, vaults, and similar equipment. Nistico did not at any such time identify himself as an employee of Mosler. The sole purpose of his visits was to establish whether or not non-union employees were being used by Mosler in contravention of its collective bargaining agreement with the union.

On January 31, 1977, Barnett, operating within the scope and course of his employment as Regional Installation Manager for Mosler, falsely and maliciously wrote and published the following words, knowing of their falsity or with reckless disregard as to whether they were true or false, to William Shaffer, Vice President of Local #16, and at least five other persons, concerning the aforementioned visits by plaintiff to the two Baltimore banks:

“I do not know why Nistico went to these locations and posed as a Mosler Safe Company employee. I can only assume this was an individual act and had nothing to do with his membership in the Ironworker’s Union or Local #16. The facts would appear that he was at these locations at the time reported by the eye witnesses and as shown in the photographs. It would also appear that he posed as a Mosler Safe Company employee and asked pointed questions about security equipment according to eye witness reports. It is my understanding that in accordance with accepted security procedures at Baltimore Federal and the Local FBI Office, photographs of this individual taken on January 18, 1977, have probably been distributed to financial institutions in the Baltimore area.
“I have contacted our company Labor Relations and Personnel Department and have been advised by Mr. Hank Hinrichsen, Director of Personnel, to inform you that under no circumstances will A1 Nistico be used on Mosler Safe Company jobs again. When Mosler requests ironworkers from your local, he is not to be sent to our jobsites. If he is sent, he will not be used or paid in any manner, including show-up time. I’m sure you will agree that this is in the best interest of your Local, the International, Mosler, and our valued customers.”

These statements were intended to convey and did convey, the meaning that Nistico had been guilty of unsavory or criminal conduct, “or deeds or actions of a shameful or disgraceful character.” Although Nistico has been available for work ever since said publication, Mosler and various others have refused to employ him, and he has suffered loss of earnings and other income, as well as anxiety, vexation, and mental and emotional anguish.

On January 20, 1977, Barnett, again operating within the scope and course of his employment with Mosler, falsely and maliciously spoke and published by telephone essentially the same words as are set forth above. Appellant claimed $100,000 as damages in each of two counts.

The Court of Appeals recently summarized the elements which must be alleged in a defamation action in Metromedia, Inc. v. Hillman, 285 Md. 161, 400 A.2d 1117, 1123 (1979) as follows:

“Suffice it to say the effect in Maryland of Gertz[v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)] and Jacron [Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976)] is that in order for a declaration alleging libel in a Maryland court to withstand the test of a demurrer it must allege:
(1) a false and defamatory communication
a — which the maker knows is false and knows that it defames the other, or
b — that the maker has acted in reckless disregard of these matters, or
c — that the maker has acted negligently in failing to ascertain them, and
(2) that the statement was one which appears on its face to be defamatory, as, e.g., a statement that one is a thief, or the explicit extrinsic facts and innuendo which make the statement defamatory, and
(3) allegations of damages with some particularity, since Gertz and Jacron forbid presumed damages.
In other words, as to (3) in Maryland a pleading to be sufficient must show a basis for believing that the plaintiff has sustained actual injury as defined in Jacron. As Judge Hammond noted in Richardson, supra, 207 Md. at 304, in some types of action injury was presumed from the violation of an absolute legal right while in others actual injury has to be shown to make a wrong actionable. In the words of the Court in Garonzik v. Balto. Fed. S. & L. Ass’n, 225 Md. 322, 323, 170 A.2d 219 (1961), a declaration must indicate more ‘than extravagant and diffuse conclusions of the pleader.’
In sum, the only distinction remaining in Maryland between a libel per se and a libel per quod is that to recover the plaintiff must first show that the publication is defamatory. Where the words themselves impute the defamatory character, no innuendo — no allegation or proof of extrinsic facts — is necessary; but otherwise, it is. This is both a pleading rule and an evidentiary requirement. Where extrinsic facts must be shown in order to establish the defamatory character of the words sued upon, the omission to plead them makes the complaint demurrable for failure to state a cause of action. Failure to prove them would justify a directed verdict.”

The declaration before us alleges that the statements were made maliciously and with knowledge of their falsity or with reckless disregard for whether they were true or false. The sufficiency of this aspect of the declaration was not challenged by the demurrer and so we need not concern ourselves with it. A court will not consider any ground for a demurrer which has not been specifically raised. Hall v. Barlow Corp., supra. Therefore, the first portion of the test set out in Metromedia, supra, has been met.

As we read the alleged defamatory statement it is capable of supporting the inference that appellant was engaged in an illicit activity in visting the two Baltimore banks. While the statement does not explicitly assert that appellant was attempting some sort of illegal activity, a reasonable inference to that effect may be drawn from the words used. We conclude that the statement supports the innuendo ascribed to it in the declaration in that it implies appellant was untrustworthy and not a fit person to perform the type of work in which he specialized; that is, the installation of safes, bank vaults, safe deposit boxes, and other similar items. The statement in the present case is analogous to that under consideration in Fennell v. G. A. C. Finance Corp. of Baltimore, No. 3, 242 Md. 209, 218 A.2d 492 (1966). In that case, a letter to the plaintiffs employer stated that plaintiff was in default on a financial obligation and strongly implied that he could not be trusted to handle his employer’s funds. The suggestion of wrongdoing and dishonesty in the present case is not as strong as that in Fennell, but it is sufficiently clear for us to conclude that the second prong of the Metromedia test has been satisfied.

Finally, it is apparent that appellant has alleged actual injury as the result of the defamation. He claims to have suffered injury to his reputation as a citizen and as an iron worker; the loss of employment by Hosier, as well as other employers; and anxiety, vexation, and mental and emotional anguish. All of these are elements of actual harm which ordinarily may be recovered in a defamation action. See Gertz v. Robert Welch, Inc., supra; Jacron Sales Co., Inc. v. Sindorf, 276 Md. at 587. We conclude that actual harm has been alleged in this case and the declaration meets the final prong of the Metromedia test.

The trial court held that although the declarations standing alone stated a cause of action, the action was barred by a collective bargaining agreement between the parties. The agreement was filed in answer to a request under Md. Rule 326 and, as we have said, must be considered a part of the declaration. It provides, in part, for the submission to arbitration of “[a]ny dispute as to the proper interpretation of this agreement,” and spells out the process by which such disputes are to be resolved.

Appellant argues that this suit is based on defamation and that it is beyond the scope of the dispute settlement procedures outlined in the contract. Appellees, on the other hand, appear to argue that the action is, in essence, one to recover damages for the wrongful discharge from employment. The characterization imposed upon the declaration by appellees is not entirely correct. The declaration claims damages not only for Mosler’s refusal to employ appellant, but also for the refusal of others to employ him; for the injury to his general reputation; and for anxiety, vexation, and mental and emotional anguish.

The collective bargaining agreement between Mosler and appellant’s labor union covered the employment relationship between the parties. Whether appellant was unjustly discharged is certainly a matter within its scope. It does not purport to cover any relationship between the parties outside that of employment and it does not purport to affect actions for civil wrongs committed by one party against the other which are related only incidentally, if at all, to the employment. See Henthorn v. Western Md. Ry. Co., 226 Md. 499, 174 A.2d 175 (1961); Kelly v. Exxon Corp., 35 Md. App. 272, 370 A.2d 162 (1977), rev'd on other grounds, 281 Md. 689, 381 A.2d 1146 (1978). Here, appellant has alleged damages, beyond lost wages, which were suffered as a result of defamatory statements. Such damages are alleged to have been caused by the defamation, not, as appellees argue, by the mere refusal of Mosler to employ appellant. Recovery of such damages is not a subject for arbitration under the collective bargaining agreement.

To the extent that appellant seeks to recover from Mosler lost wages due to the company’s refusal to employ him, we think his exclusive remedy is under the terms of the contract. Henthorn v. Western Md. Ry. Co., supra. Such sums would be recoverable from the company only upon a theory of wrongful discharge. Logically, the company would not be liable on the basis of a defamation attributable to it for its own refusal to employ appellant.

Whether appellee Barnett may be held liable for appellant’s lost wages is a different question. Barnett was not a party to any agreement and it appears from the full text of the letter which he wrote to the local’s vice president that the decision not to use appellant on any future Mosler jobs was made by another company official after being “contacted” by Barnett. As one who allegedly published defamatory matter he would be liable for any damages caused thereby. Thus, if the allegations are proven that Barnett defamed appellant, without privilege, and that such wrong was the proximate cause of appellant’s loss of employment, Barnett may be held liable for the injury.

A demurrer to an entire pleading must fail if, eliminating any part thereof that may be defective, enough remains to present a sufficient ground for relief. Smith v. Smith, 216 Md. 141, 140 A.2d 58 (1958). As appellant has stated grounds for relief against both appellees the demurrer in this case should have been overruled.

Order sustaining demurrer reversed.

Case remanded for further proceedings.

Costs to abide final result.

      . Pursuant to Md. Rule 326, Mosler and Barnett demanded copies of the letter of January 31, and the collective bargaining agreement referred to in the declaration. After these were filed, they were treated under the rule as incorporated in the declaration.

      . “It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” 418 U.S. at 349-50.

      . Appellee also argues that the action cannot be maintained because the alleged defamatory statement “given by Mosler to the union vice president was required or intended under the terms of the Agreement.” This argument is based on the assumption that publication of the defamation was only to individuals with a legitimate interest in the information. The point raises the issue of qualified privilege and attendant fact questions. The declaration itself alleges that the communication was made to various persons but the pleadings do not reveal the offices held by all such persons. In any event, the point should be raised in a motion for summary judgment, or at trial, rather than on demurrer. See Pollitt v. Brush-Moore Newspapers, Inc., 214 Md. 570, 136 A.2d 573 (1957); Gallant v. Board of School Commissioners, 28 Md. App. 324, 345 A.2d 448 (1975).


text:
    THE POTOMAC EDISON COMPANY v. DONALD M. BOUTON et ux.
    [No. 1389,
    September Term, 1978.]

      Decided September 10, 1979.

    The cause was argued before Thompson, Liss and Couch, JJ.

      Peyton Paul Phillips, with whom was Frederick J. Bower vu üie brief, for appellant.

      Robert L. Ferguson, Jr., with whom were Allen, Thieblot & Alexander on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The Potomac Edison Company, appellant, sought to construct an electric transmission line from its Carroll station in Carroll County to a proposed Mt. Airy station in Frederick County. To accomplish this purpose appellant is entitled to exercise the power of eminent domain in obtaining easements over the proposed route. A prerequisite to the exercise of that power is that appellant obtain from the Maryland Public Service Commission (the Commission) a certificate of public convenience and necessity. Md. Code, Ann. Art. 78, § 54A and § 54B. Bouton v. Potomac Edison Co., 282 Md. 142, 383 A.2d 669 (1978). In its application for such a certificate appellant submitted a proposed route which would have passed through a wooded area and to the southwest of a certain Boy Scout camp and then through a relatively small portion of appellees’ property. In an order dated November 13, 1974, the Commission conditionally approved the certificate ordering, in part, as follows:

“(1) That a Certificate of Public Convenience and Necessity be, and it is hereby, granted to The Potomac Edison Company for the construction of a 230 kV transmission line as set forth in the application, except as hereinafter modified.
“(2) That the following conditions are made part of said Certificate of Public Convenience and Necessity:
* * *
“(g) That with respect to the area where the proposed transmission line passes in the vicinity of the Boy Scout Camp, the Company be required to make a modification of its proposed line routing so as to place approximately an additional 100 feet between the transmission line and the pond; the movement of the line, in order to effectuate this modification, should be confined to and remain within the wooded area southwest of the pond;
* * *
“(i) That the Applicant follow, where practical, the guidelines for the protection of the natural, historic, scenic, and recreational values as set forth in the Guidelines for the Transmission Facilities recommended by the Working Committee on Utilities in its Report to the Vice President and to the President’s Council on Recreation and Natural Beauty, dated December 27, 1968.”

To meet condition (2) (g) appellant altered its proposed route so that it would pass the required distance to the southwest of the Boy Scout pond. The modified route exited the wooded area and entered appellees’ property at a point approximately 470 feet south of the original route. The result was that the new route passed through a much greater portion of appellees’ property than did that originally proposed.

Unable to reach an agreement with appellees as to the amount of compensation that should be paid, appellant filed its petition for condemnation in the Circuit Court for Frederick County. The inquisition of the jury awarded $24,200 to appellees as damages for the easement taken. On appeal, the Court of Appeals remanded the case pursuant to Md. Rule 871 for a determination of “whether the modified line route conforms to condition (2) (g) of the Commission order of 13 November 1974.” Bouton v. Potomac Edison Co., 282 Md. 142, 150, 383 A.2d 669 (1978). The Court explained the importance of that determination as follows:

“Upon conducting the appropriate proceedings upon remand, the trial court shall take such action with respect to the entering of a new judgment as is required by its findings. See Board v. John K. Ruff, Inc., 278 Md. 580, 596, 366 A.2d 360 (1976). If it determines that the modified route is not in compliance with the Commission’s order, the Company would not be empowered to obtain by condemnation the easement over Bouton’s land which its petition seeks, and the court shall thereupon vacate the inquisition and enter a judgment in favor of Bouton for costs pursuant to Rule U21 b. If the court determines that the modified route is in compliance with the Commission’s order, the Company would be authorized to obtain by condemnation the easement sought, and the court shall thereupon reenter final judgment on the inquisition pursuant to Rule U21 d.” Id. at 150-51.

Upon a retrial the question framed by the Court of Appeals was submitted to a jury which returned a verdict against appellant. From the judgment entered on that verdict, appellant appeals contending (1) that the case should not have been submitted to a jury; (2) that the court should have granted a summary judgment for the Company; and (3) that the court erred in allowing a surveyor to give his opinion on the question of compliance with the Commission’s order.

We agree that under the law the question should not have been submitted to a jury. Md. Rule U15 a. provides as follows:

“A proceeding for condemnation shall be tried by a jury unless all parties elect trial by the court without a jury as hereinafter provided.”

It is important to observe, however, the following notation by the Rules Committee following Rule U15 in Vol. 9C of the Md. Code Ann., Md. Rules:

“Committee note. — No change is intended in the present law as to whether the question of the right to condemn is for the court or for the jury. See Johnson v. Consolidated Gas, Elec. Light & Power Co., 187 Md. 454, 50 A.2d 918 (1947); Lustine v. State Rds. Comm’n, 217 Md. 274, 142 A.2d 566 (1958); Potomac Elec. Power Co. v. Birkett, 217 Md. 476, 143 A.2d 485 (1958); Ligon v. Potomac Elec. Power Co., 219 Md. 438, 149 A.2d 376 (1959).”

We quote from two of these cases to illustrate the state of the law on this issue:

“The appellants contend that there was error in refusing to allow them, during the course of the trial, and as part of their case before the jury, to attempt to show that the determination of necessity and the denial of access by the State Roads Commission was arbitrary, capricious or unreasonable. We find no merit in this contention. Such questions, at most, were for the court, and not the jury, to pass upon. Hyattsville v. Washington, Westminster & Gettysburg Railroad Company, 122 Md. 660, Johnson v. Gas & Electric Company, 187 Md. 454, Nichols on Eminent Domain, 3d Ed. Sec. 4.105 (5), McCarthy, et al., v. Bloedel Donovan Lumber Mills, Circuit Court of Appeals, Ninth Circuit, 39 F. (2d) 34, St. Clair County Housing Authority v. Quirin (Ill.), 39 N.E. (2d) 363, Wilton v. St. Johns County(Fla.) 123 So. 527, 65 A.L.R. 488, and Davidson, et ux., v. Commonwealth, ex rel., State Highway Commission (Ky.) 61 S.W. (2d) 34.” Lustine v. State Roads Comm’n, 217 Md. at 278.
“We think it plain that the question of the right to condemn properly was determined by the court as a preliminary matter. This question, of course, was one for the court to decide. Lustine v. State Roads Commission, 217 Md. 274, just decided____Ata time when the provisions now codified as sections 4 and 9 of Art. 33A were in effect, the Court held in Davis v. Board of Education, 166 Md. 118, that there was no right of appeal from a preliminary determination that a petitioner had a right to condemn because that was not a final judgment, but accepted as a matter of course the fact that the question had been decided in advance of the trial by decision on a demurrer to a plea in bar.” Potomac Elec. Power Co. v. Birkett, 217 Md. at 482-83.

The appellees argue that under Rule U19 it was proper to submit the issue of appellant’s right to condemn to the jury. That Rule merely provides for the form and contents of an inquisition, as follows:

“a. Form of Verdict.
The trier of fact shall render a special verdict in the form of an inquisition.
b. Caption.
The inquisition shall be captioned with the complete titling of the case, except that the addresses of the parties may be omitted.
c. Signature Date.
The inquisition shall be signed by each member of the jury, or, if the case is tried without a jury, by each of the judges hearing the case, and shall be dated the day when rendered.
d. Finding on Right to Condemn.
The inquisition shall contain a finding as to whether or not the plaintiff has the right to condemn the property sought to be condemned.
Cross reference. — See Committee note following Rule U15 (Trial — Method — No Removal).
e. Description of Property.
The inquisition shall contain a description of the property condemned complying with the requirements for a description of property sought to be condemned in a petition for condemnation under this subtitle.
f. Nature of Plaintiff’s Estate.
The inquisition shall state the nature of the interest in the property acquired by the plaintiff.
g. Award of Damages.
The inquisition shall set forth the amount of damages, if any, to which each defendant or class of defendants is entitled or, if the court so orders, the total amount of damages awarded or both.
h. Other Matters.
The inquisition shall contain the findings on such other issues as, under the pleadings and evidence, the court may properly have submitted to the trier of fact for special findings.”

In view of the Committee’s notes, appellees’ contention is without merit. All that was intended by Rule U19 d. was that the inquisition should recite what the finding of the court had been on the issue of the right to condemn.

Appellant also contends that the trial court erred in refusing to grant its motion for summary judgment. The motion was based largely on the affidavits of two of the Commission’s engineers and of an engineer employed by appellant. The two Commission engineers stated that they reviewed the modified line route in light of the Commission’s order and concluded that it was in compliance with that order. The only factual basis given for that conclusion consisted of the following: (1) That the modified route was the required distance from the pond; and (2) That the modification was entirely within the wooded area. As to the first point there is no dispute. As to the second point, however, it would appear that the exhibits flatly contradict the assertion. It is obvious that the modified route extends well beyond the wooded area.

The third affidavit states nothing more than the affiant’s conclusion that the modified route complies with condition (2) (g) of the Commission’s order. The conclusions expressed in these affidavits are of value only insofar as they are based on sound factual bases. It is readily apparent in the present case that no such bases existed in the proffered affidavits or in the deposition relied on by appellant in support of its motion for summary judgment. The court did not err in denying that motion.

Appellant’s final contention is that the trial court erred in allowing a surveyor to give his opinion concerning the interpretation of the Commission’s order when the witness had had no experience in interpreting such orders or in formulating electric transmission line routes. It is argued that because of the specialized nature of routing and constructing electric transmission lines a particular expertise is required for the interpretation of Commission orders relative to such lines. Appellant has pointed to no factual basis, applicable to this case, for this assertion. As we view the case, the opinion given by this witness was as valid as those given by appellant’s experts. All of these witnesses expressed opinions on the ultimate question of whether the modified line route complied with the Commission’s order. That is the issue to be determined by the court on the basis of the facts presented. While the testimony of various surveyors and engineers with respect to the underlying facts is of importance in making this determination, their ultimate conclusions on the question of compliance are of little weight.

In light of what we have said above, we find it necessary to remand the case so that the trial judge may decide the issue as directed in Bouton v. Potomac Edison Co., supra. In doing so, we call the parties’ attention to two observations there made by the Court of Appeals:

“We observe that the authority of the Commission to prescribe the exact location of the line route is not raised by the parties and we do not consider it. ” Id. at 145. (Emphasis added.)
“It is true that the Examiner sought a review of the modified line route by the Engineering Division of the Commission and received a memorandum from the Chief Engineer which concluded, on the basis of a review by a staff engineer, whose memorandum was attached, that ‘[w]e have determined that the modification as proposed by Potomac Edison is in compliance with paragraph (g) of Order 61016.’ In argument on the motion for summary judgment the Company’s attorney stated: ‘[W]e later got a letter from the Public Service Commission saying, “The rerouting is in accordance with the Public Service Commission order.” ’ The letter mentioned is not in the record before us. The statement of the Chief Engineer was only an expression of his opinion, and even if shared by the Examiner, is not a determination by the Commission itself. In any event, it is obvious that the Commission order of 13 November 1974 may not be considered as approving whatever modification of the original route the Company believed to be in compliance with the condition, or, specifically, as approving the line route as here subsequently modified. We have not been referred to, nor do we find in the record, a final order or decision by the Commission confirming that the modified route fulfilled the condition. See Code (1957, 1975 Repl. Vol.) Art. 78, § 20. ” (Footnote 6 omitted. Emphasis added.) 282 Md. at 147-48.

If appellant’s witnesses were correct we do not see why it could not obtain a Commission order, as suggested by the Court of Appeals, prior to retrial.

A cross-appeal was also noted on behalf of the Boutons (cross-appellants). It raised the issue of whether the trial court should have specifically included in its award of costs an award of counsel fees, expenses, surveyor’s fees, and appraisal fees and ordered a surrender of possession of the property by the Company. On October 17, 1978, cross-appellants filed a petition for costs, payment of penalty bond and surrender of possession. The company filed its order for appeal on October 20,1978, and the cross-appeal was filed on November 9, 1978. Meanwhile, no disposition had been made of the petition for costs and surrender of possession. On November 28,1978, cross-appellants requested a hearing on the matter which was held on January 5, 1979. The trial court then ruled that because an appeal had been taken, it no longer had jurisdiction over the issue and therefore did not decide it. Cross-appellants then filed another notice of appeal from the court’s January 5 ruling. In view of our disposition of the appeal the questions raised by the cross-appeal are not now ripe for our determination.

Case remanded to the Circuit Court for Frederick County without affirmance or reversal pursuant to Maryland Rule 1071 for further proceedings in accordance with this opinion, the costs to abide the result in the lower court.

      “7. Section 20 of Art. 78 enabled the Commission to delegate authority to its personnel who were authorized ‘to submit findings and recommendations to the Commission.’ There was the proviso: ‘No decision in any matter in which authority has been delegated under this section shall be effective until made or confirmed, and ordered filed, by the Commission in its principal office.’
      “Section 20 was repealed and a new § 20 was enacted in lieu thereof effective 1 July 1976 by Acts 1976, ch. 756. It was amended by Acts 1977, chs. 54, 723. Code (1957, 1977 Cum. Supp.) Art. 78, § 20.”


text:
    JOEL A. LEVIN et al. v. MARILYN S. LEVIN
    [No. 1391,
    September Term, 1978.]

      Decided September 11, 1979.

      The cause was argued before Thompson, Liss and Couch, JJ.

      Benjamin Lipsitz for appellants.

      Theodore G. Bloom, with whom were Goodman & Bloom, P.A. on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Joel A. Levin (Joel), The Phoenicia Corporation (Phoenicia), and Allen Corporation (Allen), appellants, three of the five defendants below, appeal from a decree of the Circuit Court for Anne Arundel County, Turk, J., declaring that Joel’s former wife, Marilyn S. Levin (Marilyn), the appellee, was entitled to equal ownership with Joel in certain assets and ordering that the appropriate interests be transferred to her. The appellants contend that the chancellor erred (1) in decreeing that Marilyn owned a fifty per cent interest in Phoenicia; (2) in declaring that Marilyn owned a twenty-five per cent interest in Allen; (3) in declaring that Marilyn owned a one-half interest in the yacht “Phoenicia” and in requiring Joel to account for all assets acquired by him through the funds of Phoenicia; (4) in admitting an accountant’s testimony; (5) in permitting a special auditor to present evidence to the court from outside the record; and (6) in ruling that venue was in Anne Arundel County.

Joel and Marilyn were married May 19,1946; they had two daughters, Karen and Robin, and a son, Eric. They separated on September 13, 1975 and were divorced on November 29, 1976 by a decree of the Circuit Court No. 2 of Baltimore City. For many years prior to 1970 Joel had been engaged in the home improvement business, working in and having a one-fourth ownership interest in a corporation called Seaview Construction Company. In the latter part of 1970 Joel was separated from that enterprise. Thereafter he underwent a period of unemployment. Marilyn worked part time in a cosmetic boutique during this interval earning about $65.00 per week. In late 1970 a liquor store, known as Peoples Liquors, came to Joel’s attention as a business that was for sale and which he might be able to acquire. After a period of negotiation (in some of which Marilyn participated) a contract was entered into for purchase of the business in June of 1971. Both spouses signed the contract which recited a purchase price of $55,000.00 plus the value of the inventory of the business, estimated to be $130,000.00. The contract required the buyer to pay the total sum of $65,000.00 into two escrow accounts simultaneously with execution of the agreement. Money to finance the acquisition was obtained, in part, by mortgaging the family residence which was owned by Joel and Marilyn as tenants by the entireties, which produced $20,000.00 or $30,000.00, by selling the family sailboat, which was also titled in both names and produced $12,500.00, and by borrowing from a lender called M & R Holding Company which produced $20,000.00. Notes given to M & R Holding Company in the loan transaction were signed by both Joel and Marilyn. Joel testified that other monies, including about $17,500.00, which came to him alone as a result of his separation from Seaview went into the liquor store transaction. Marilyn testified that Joel borrowed $5,000.00 from his mother “when he went to purchase Phoenicia Corporation.” Joel said he borrowed it earlier. Marilyn testified that the decision to mortgage the house, sell the boat and borrow money to purchase the liquor store business was a joint decision, made after frequent discussions between her and her then husband in which the matter was considered a joint venture. She testified: “The two of us were doing it together. We were in it together from the beginning, it was a joint and equal effort.”

A corporation, Phoenicia, was formed to acquire and operate the liquor store business. Phoenicia’s charter was filed with the Maryland Department of Assessments and Taxation on July 26, 1971. The incorporators named in the charter were Joel and Marilyn. The directors named therein were Joel, Marilyn and their daughter, Robin. Phoenicia’s principal office was located at Joel and Marilyn’s then residence in Baltimore. A security agreement and financing statement incident to the transaction were signed by Phoenicia, Joel and Marilyn, as were Articles of Sale of the assets of The Peoples Liquor Company to Phoenicia, filed with the Department of Assessments and Taxation on April 13, 1972. The three persons whose names appeared on the liquor license obtained for Phoenicia were Joel, Marilyn and Robin. The same three acted as officers of Phoenicia, although no organization meeting of Phoenicia’s incorporators was ever held and no stock was issued. The original lease for the liquor store premises was initially taken in the names of Joel and Marilyn as lessees. Upon its expiration a renewal lease was taken in Joel’s name alone.

Joel, Marilyn, Robin, Karen and Eric all worked in the liquor store for a period of time. Marilyn waited on customers and handled the wine trade. Joel was in charge of buying and the financial aspects of the operation. Marilyn stopped working in June, 1975. Eric eventually became the manager of the store as Joel devoted time to other interests, but Joel continued to set policy and ran the business, which was very successful for a period of time. Joel borrowed substantial sums of money from Phoenicia and made investments, apparently for his own account, in real estate. He paid interest to Phoenicia on the loans. He acknowledged his indebtedness to Phoenicia, in the amount of the balance of the loans to him shown on its books, when he testified below. Joel also loaned $30,000.00 to Phoenicia at its inception and received interest payments from the corporation.

On June 25,1974, Joel and Edward H. Legum entered into a contract to acquire from Charles H. Steffey, Incorporated an apartment property in Annapolis known as Allen Apartments and consisting of 98 units. The purchase price was $650,000.00, including existing mortgage indebtedness. Joel was obliged to produce $50,000.00 as his contribution to funding the acquisition. He obtained most of that money by borrowing from M & R Holding Company. Marilyn cosigned on the note involved. Marilyn was not a party to the contract under which the apartments were acquired or the negotiations leading to the purchase but she testified that the decision to borrow money jointly to invest in the acquisition of the Allen Apartments was a joint decision made after discussions between her and her then husband in which they talked about their owning a one-half interest in the apartments together; the other fifty per cent was to be owned by Mr. Legum and his wife.

A corporation, Allen, was formed to acquire and operate the apartment property. Its charter was filed with the State Department of Assessments and Taxation on August 13, 1974. The incorporators named therein were Joel and Edward Legum. The directors were Joel, Legum and his wife, Miriam Legum. The same three acted as officers. Allen’s principal office was located at Legum’s address in Annapolis. No organization meeting of Allen’s incorporators was held and no stock was issued. At settlement for the apartment property on August 29, 1974, the property was conveyed by Steffey to Allen which executed a second mortgage to Steffey to secure the unpaid balance of the purchase price. The only cash involved in this transaction was the $100,000.00 raised by the Levins and the Legums. The corporation alone assumed responsibility for the payment of the balance due. Joel signed the documents for Allen as its vice-president. Legum and Joel, but chiefly Legum, conducted Allen’s day to day business.

Joel testified that in the summer of 1975 he purchased a boat, which he named “Phoenicia” and titled it in his name alone. He testified that he had no agreement with Marilyn to title the boat in both names. The purchase price was $46,500.00. He paid $25,000.00 as a down payment, which funds came from Phoenicia. The balance was borrowed under a joint obligation of Joel and Marilyn from Equitable Trust Company. He has been making the payments on the loan. Marilyn said that the decision to purchase a boat was initially her idea and that she encouraged Joel to go to Florida to look for a boat. She authorized the broker to purchase the boat when he called one Sunday and told her that the boat could be purchased for several thousand dollars more than Joel was willing to spend when he was in Florida. Marilyn said that she and Joel constantly discussed the acquisition of the yacht and that they “were doing it together from the beginning, as a joint venture.” She acknowledged on her cross-examination that these discussions “were part of the normal husband-wife relationship.”

Joel testified that he had never agreed to issuance of stock in Phoenicia to Marilyn, or to anyone but him, or that she should be part owner of the liquor store business. He said it was not his idea, but the seller’s, to put Marilyn on the agreement for sale of that business. He also denied any agreement with Marilyn to take title to the yacht “Phoenicia” in any way which would include Marilyn. Joel also testified that he was living with Marilyn, on ordinary terms, when the Phoenicia and Allen deals were being negotiated and she did not then indicate to him that she wanted an ownership interest in either enterprise; that the first time he heard that was after they were separated.

I Phoenicia Corporation

Appellant contends the chancellor erred in declaring that Marilyn was entitled to a fifty per cent interest in Phoenicia and in ordering that Phoenicia’s stock certificates be issued accordingly. His arguments are almost totally factual insisting that we should accept his testimony instead of Marilyn’s. Under Md. Rule 1086 we must accept the chancellor’s findings of fact unless they are clearly erroneous. The credibility of the witnesses was for him to determine and on appeal we must view the evidence in the light most favorable to the appellee. Moon v. Weeks, 25 Md. App. 322, 333 A.2d 635 (1975). Viewed in this light there was strong evidence to support the findings of the chancellor. Most, if not all, of the money used to purchase the business came from joint assets and from a loan made to the parties jointly. The lease for the business premises was in joint names and the business was purchased by Joel and Marilyn jointly. Thereafter both parties devoted full time to the business until Marilyn was required to discontinue working because of ill health. The auditor’s report revealed that the applications for liquor licenses for the business from 1972 through 1976 stated that Marilyn and Joel each owned fifty per cent of Phoenicia’s stock. While not determinative in themselves these documents corroborate the testimony that the liquor store enterprise was a joint venture. Compare Smith v. Smith, 189 Md. 1, 53 A.2d 15 (1947) with Beard v. Beard, 185 Md. 178, 44 A.2d 469 (1945); Collier v. Collier, 182 Md. 82, 32 A.2d 469 (1943); and Gosman v. Gosman, 19 Md. App. 66, 309 A.2d 34 (1973), reversed in part and affirmed in part, 271 Md. 514, 318 A.2d 821 (1974). Even though Joel may have contributed slightly more funds to the joint venture than Marilyn, the papers indicated the parties intended that their interests be equal. At least the evidence was sufficient for the chancellor to so find.

II Allen Corporation

Appellant contends the chancellor erred in declaring that Marilyn was entitled to a twenty-five per cent interest in Allen and ordering that its stock certificates be issued accordingly. The basis for this declaration was the chancellor’s conclusion that a resulting trust had been established for the benefit of Marilyn over one-half of Joel's holdings. Once again Joel’s argument is primarily factual and we are required to accept the testimony most favorable to the appellee.

A resulting trust is an implied trust which rests upon the presumed intention of the parties. It may arise when the consideration given for a property is furnished by one party while the legal title is taken by another, provided the circumstances surrounding the transaction do not demonstrate a contrary intention by the parties. Taylor v. Mercantile-Safe Deposit & Trust Co., 269 Md. 531, 307 A.2d 670 (1973); Fitch v. Double “U” Sales Corp., 212 Md. 324, 129 A.2d 93 (1957); Fasman v. Pottashnick, 188 Md. 105, 51 A.2d 664 (1947). Where only a portion of the consideration is so paid a resulting trust may arise in favor of the payor

“in such proportion as the part paid by him bears to the total purchase price, unless he manifests an intention that no resulting trust should arise or that a resulting trust to that extent should not arise.” Fasman v. Pottashnick, supra, at 109.

The party seeking to establish a resulting trust has the burden of doing so by clear, unequivocal, and convincing evidence. Siemiesz v. Amend, 237 Md. 438, 206 A.2d 723 (1965); Fitch v. Double “U” Sales Corp., supra. Payment of the purchase price by the party claiming the benefit of the trust must have occurred either before or at the time of the purchase and

“the transaction is to be judged as of its date, and not upon the basis of facts occurring subsequent to that date.” Lacey v. Van Royen, 259 Md. 80, 89, 267 A.2d 91 (1970).

In the present case, the evidence showed that Joel, together with Edward Legum, determined to purchase the Allen Apartments. Allen Corporation was formed to make this acquisition. Joel and Legum agreed that they would each contribute $50,000.00 in order to make the purchase and that they would share equally in the enterprise. The remainder of the purchase price was to be paid by the corporation and it does not appear that any personal liability for that balance was incurred by any other party. Joel’s portion of the required funds was raised through a loan from M & R Holding Company to Joel and Marilyn. It is undisputed that Marilyn cosigned the note evidencing that loan. Repayment of the debt was made through the profits of Phoenicia and Allen. The chancellor found that Marilyn joined Joel in borrowing those funds only after he had persuaded her that the investment would be a good one for the two of them. The chancellor also found that Marilyn understood that she and Joel would share equally a one-half interest in the investment and these findings are supported by the evidence.

Joel now argues that “Marilyn’s activities in attending settlement... and in signing documents there ... are just as referable to the ordinary lender’s practice of requiring spouses to join in encumbrances and security instruments as to anything tending to establish a resulting trust.” This argument overlooks Marilyn’s testimony and the chancellor’s findings based thereon. Incurring that obligation was sufficient consideration to support a resulting trust in favor of Marilyn. See Keller v. Kunkel, 46 Md. 565 (1877).

Joel next argues that if a resulting trust does arise in Marilyn’s favor in the assets of Allen then it must be limited to the extent of $25,000; that is, one-half of the Levins’ initial investment. This reasoning does not comport with the law as stated in Fasman v. Pottashnick, supra, to the effect that a party furnishing only a portion Of the purchase price will have a beneficial interest in the whole property in proportion to his contribution.

We repeat, the evidence presented was sufficient to support the chancellor’s conclusion as to Allen.

Ill The Yacht “Phoenicia” and the Loans from Phoenicia Corporation

Joel argues that the chancellor was clearly erroneous in holding that Marilyn owned a one-half interest in the yacht “Phoenicia”. He relies on his own testimony that Marilyn was involved in the purchase of the yacht only in that she agreed with the broker, in Joel’s absence, to pay a price somewhat higher than Joel theretofore indicated a willingness to pay. The chancellor’s findings, “that the parties intended the boat should be jointly owned” and that it was paid for by means of a loan made to both parties and funds derived from the jointly owned Phoenicia Corporation are amply supported by Marilyn’s testimony. We repeat the chancellor was entitled to believe Marilyn’s testimony and to disbelieve that of Joel. Under the principles discussed above, the chancellor was correct in imposing a resulting trust in favor of Marilyn on a one-half interest in the yacht.

Joel next argues that it was error for the chancellor to require him to account for all assets acquired by him with or through Phoenicia loans and funds and to impress a constructive trust on all other assets acquired by him with Phoenicia funds and upon the liquor store lease.

The record shows that Joel borrowed almost $100,000.00 from Phoenicia, drawing checks upon the corporate funds either to himself or in payment of personal obligations. He stated that the borrowings were without the knowledge or approval of the directors of the corporation and without any form of corporate resolution or authority. Indeed, the evidence shows that Joel treated the corporation as an alter ego, handling its funds as if they were his own.

In Carter v. Abramo, 201 Md. 339, 343, 93 A.2d 546 (1953), the Court said:

“A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another person on the ground that he would be unjustly enriched if he were permitted to retain it. The duty to convey the property may arise because it was acquired through fraud, duress, undue influence, or mistake, or through a breach of fiduciary duty, or through wrongful disposition of another’s property. Springer v. Springer, 144 Md. 465, 125 A. 162; Lipp v. Lipp, 158 Md. 207, 148 A. 531; O’Connor v. Estevez, 182 Md. 541, 555, 35 A.2d 148; Trossbach v. Trossbach, 185 Md. 47, 42 A.2d 905; Fasman v. Pottashnick, 188 Md. 105, 51 A.2d 664. The equity court imposes a constructive trust upon either real or personal property by parol evidence on the ground of public policy under the equitable doctrine that the Statute of Frauds, which was enacted for the purpose of preventing fraud, should not operate as a shield for the perpetration of fraud. Soehnlein v. Pumphrey, 183 Md. 334, 37 A.2d 843.” (Emphasis added.)

Although Joel was never officially elected president because the corporation never held meetings, he held himself out and acted as the president, and he was in fact and law one of three directors of the corporation. We think this is sufficient to impose upon him the fiduciary obligations of such an officer and director; thus he occupied a confidential relation to the corporation. Merchants Mtge. Co. v. Lubow, 275 Md. 208, 339 A.2d 664 (1975); Waller v. Waller, 187 Md. 185, 49 A.2d 449 (1946); Pritchard v. Myers, 174 Md. 66, 197 A. 620 (1938). As an officer and director of Phoenicia, Joel bore the same obligations to it as an agent bears to his principal and a trustee bears to the beneficiaries of his trust. Pritchard v. Myers, supra. In dealing with corporate assets he was required to act in the best interests of the corporation and he was prohibited from using either his position or the corporation’s funds for his private gain. Carey v. Safe Deposit & Trust Co., 168 Md. 501, 178 A. 242 (1935); Cumberland Coal & Iron Co. v. Parish, 42 Md. 598 (1875).

Joel argues that the loans were openly made and reflected in the corporate books. He also states that some of the loans have been repaid with interest and that he planned to repay the remainder. Such circumstances, even if believed by the chancellor, do not dispel the need for an accounting and the imposition of a constructive trust on assets acquired by Joel with Phoenicia funds. As the authorities cited above make clear it was a breach of Joel’s fiduciary duty to appropriate corporate funds to his own use without authorization by the corporation. It is settled that

"A trustee will not be allowed to retain for himself a profit made from his dealings with trust property, although he is able to show that the profit was not made at the expense of the trust.” Carey v. Safe Deposit & Trust Co., supra, at 514.

We find that principle applicable to the present case.

It should be pointed out that fraud is not essential for the imposition of a constructive trust; it is sufficient if the conscience of the chancellor requires granting such relief. Grimes v. Grimes, 184 Md. 59, 40 A.2d 58 (1944); Hartsock v. Strong, 21 Md. App. 110, 318 A.2d 237 (1974). This, of course, does not mean the chancellor is free to impose a constructive trust without regard to established legal and equitable principles. The present case, however, is clearly within such principles and calls for the imposition of such a remedy. See Acker, Merrall & Condit Co. v. McGaw, 106 Md. 536, 556, 68 A. 17 (1907).

IV Accountant’s Testimony

Joel claims the chancellor committed error in requiring his accountant to testify over objections based on the accountant-client privilege. The major portion of the testimony pertained to the corporate affairs of Phoenicia and to joint income tax returns of Joel and Marilyn. It seems obvious that Marilyn, as a director of Phoenicia and as one of the parties involved in the income tax returns, had as much right to the records, or to waive the accountant’s privilege, as did Joel. The accountant was also asked to identify certain corporate records of the Allen Corporation but this testimony could have been obtained from any officer and no privilege attached to the corporate records. The error, if any, was not prejudicial.

V Special Auditor

Appellants object to that portion of the report of the special auditor which contained the following language:

“Inquiry made of the Board of Liquor License Commissioners, resulted in their submission of copies of application for Renewal of a Class A — Alcoholic Beverage License for the years 1972 through 1978 (Attachment 8). The names of the licensee(s) on all documents submitted herewith list Joel A. Levin, Marilyn Levin and Robin Levin. These documents (1972-1976 inclusive) state, under oath, that Marilyn and Joel A. Levin, each own 50 percent of the stock of the Phoenicia Corporation, T/A Peoples Liquor Company. The 1977 application states that Joel A. Levin and Marilyn S. Levin are the sole stockholders. The 1978 application states that Joel A. Levin owns 100 percent of the stock.
“All Applications for Renewal of Alcoholic Beverage Licenses for the years 1972 to 1978 contain the name of Marilyn Levin as one of the three licensees listed. These applications further state in notarized statements signed by Marilyn, Joel A., and Robin Levin, that Marilyn Levin and Joel A. Levin each own 50 percent of the stock for the years 1972 to 1977. There was no indication of any payments to Marilyn Levin, other than her salary by the corporation, through the fiscal year ending April 30, 1976, when she received only $900 or $100 per week for 9 weeks.

There was objection on this ground below and the trial court ruled:

“[Tjhere was testimony here that the — that the liquor license was in both names from the time it instigated to the date we were taking testimony, and that the Court had instructed the auditor to obtain copies of the liquor licenses to insure that both names were on it. And it was under this Court’s instructions that the auditor did obtain those licenses and present them to this Court.
“The Court sent out notices and the file was available for counsel to look at and the Court could ask the auditor to make himself available in the event that he would be — should be subpoenaed to defend here, as a result the Court’s going to grant the Motion Ne Re, and as a result thereby will deny the Motion for Exceptions.”

Md. Rule 595 b provides that a special auditor shall have all the powers and duties of a regular auditor. Subsection e provides as follows:

“The auditor shall regulate all the proceedings in every hearing or examination before him. In addition to his power to examine the parties and witnesses produced by them, on oath, he may require the production of all books, papers and other documents applicable thereto, where, by a court of equity, the production of such writings may be compelled. If any party so liable to produce such books, papers or other documents, shall fail or refuse so to do, such party shall, without delay, be reported to the court by the auditor, with the facts of the case, that the proper proceeding may be taken thereon, by way of attachment for contempt or otherwise, as justice may require.”

We see no error in the ruling of the chancellor.

VI Venue

Appellant Phoenicia argues that because it has its principal office in Baltimore City and conducts no business in Anne Arundel County, the Circuit Court for Anne Arundel County did not have venue. Phoenicia concedes that Courts Art., § 6-201 (b) provides that when one of the defendants is subject to suit in Anne Arundel County, all of the defendants are subject to suit in Anne Arundel County, but argues that that statute should not be applied in this case because it is entitled to have its case tried in Baltimore City under Maryland Declaration of Rights Art. 20. No constitutional question was presented below and thus we decline to consider it. Md. Rule 1085.

Decree affirmed.

Appellants to pay the costs.

      . In the decree the chancellor stated: “That the ownership in the corporate Defendant, The Allen Corporation, with respect to Edward H. Legum and Miriam Legum [the other two defendants] is hereby reserved for future determination.” Although the decree did not adjudicate the rights of all the Parties (See Md. Rule 605) it is nevertheless appealable under Md. Cts. & Jud. 'roc. Code Ann. § 12-303 which states in part:
      “A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:
      (c) An order
      (5) For the sale, conveyance, or delivery of real or personal property or the payment of money, or the refusal to rescind or discharge such an order, unless the delivery or payment is directed to be made to a receiver appointed by the court.
      (6) Determining a question of right between the parties and directing an account to be stated on the principle of such determination.”

      . In determining whether creditors could attach an unassigned right of dower the Court of Appeals in Harper v. Clayton, 84 Md. 346, 35 A. 1083 (1896) pointed out that
      “a Court of Equity, however broad and far-reaching its powers are, cannot create new rights, not before existing at law, and then take jurisdiction to pass upon and enforce them because the law affords no remedy.” 84 Md. at 352-53.
      Later in the same opinion the Court said:
      “Whatever may, at one time, have been the vague and general rule as to the limits and extent of equity jurisdiction, it is now well settled that 'no Court of Chancery at this day would attempt to supply the defects of law by deciding contrary to its settled rules m any manner, to any extent, or under any circumstances, beyond the already settled principles of equity jurisprudence.’ 1 Pomeroy Eq. Jurisp. section 47.” 84 Md. at 353.

      . Md. Cts. & Jud. Proc. Code Ann. § 9-110 provides:
      “(a) Privilege. — A certified public accountant, public accountant, or any person employed by him may not disclose the contents of any communication made to him by a person employing him to examine, audit, or report on any book, record, account, or statement nor may he disclose any information derived from the person or material in rendering professional service unless the person employing him or his personal representative or his successor in interest permits it expressly.
      “(b) Exception. — This privilege does not affect the criminal laws of the State or the bankruptcy laws.”