text:
    JOANN HOLLY et al. v. MARYLAND AUTOMOBILE INSURANCE FUND et al.
    [No. 299,
    September Term, 1975.]

      Decided December 31, 1975.

    The cause was argued before Moylan, Menchine and Moore, JJ.

      Walter I. Seif, Jr., with whom were Edward S. Feldman, D. Duffy Herman and Harry A. E. Taylor on the brief, for appellants.

      Theodore B. Oshrine, with whom were Allen, Thieblot & Alexander, John J. Corbley and J. Edward Martin, Jr., on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Joann Holly (Holly) and Mary Ann Josiah (Josiah) sustained injuries in an accident on October 31, 1971 while passengers in an automobile operated by an uninsured motorist. After obtaining judgments against the motorist for $2500.00 and $15,000.00 respectively, Holly and Josiah petitioned for payment thereof under the Unsatisfied Claim and Judgment Fund Law. (Article 66V2, § 7-601 through § 7-635 of the Annotated Code of Maryland, 1970 Replacement Volume). In separate answers to the petitions, the Maryland Automobile Insurance Fund (Fund) denied responsibility for payment of the judgments upon the ground that the judgment creditors were not residents of the State of Maryland on the date of the accident within the meaning of the statute governing their claims.

The trial court, after hearing, concluded that neither Holly nor Josiah were “qualified persons” within the meaning of former Article 66V2, § 7-602 and thus not entitled to receive payment of the judgment from the Fund.

Initially enacted as Article 66V2, § 145A by Ch. 836 of the Acts of 1957, the section underwent codification identity changes to § 150 (Annotated Code of Maryland, 1957) and to § 7-602 (Annotated Code of Maryland, 1970 Replacement Volume) but without change in the definition of the term “Qualified Person.” That constant definition reads as follows:

“(g) ‘Qualified person’ means a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory, or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that provided for by this part * * *.”

Appellants concede, as indeed they must, that the word “resident” as used in the section has been equated with “domiciliary” by judicial interpretation. In Maddy v. Jones, 230 Md. 172, 186 A. 2d 482 (1962), it was said at 179 [485]:

“It is our opinion that the design and the terms of the Act require the conclusion that Sec. 150 (g), defining a ‘qualified person’ as a ‘resident of this State’, contemplates one who possesses or has acquired a domiciliary status, in the legal sense, in this State, as distinguished from one who merely has a temporary abode in Maryland. It seems obvious that the Legislature intended, in enacting this statute, primarily to protect its own citizens, particularly those least able financially to bear the loss or injury inflicted by irresponsible or unidentified motorists, many of whose victims otherwise would require medical and welfare attention at public costs. A further significant factor is the reciprocity provision in Sec. 150 (g). This provision (which uses the words ‘resident’ and ‘residents’) could logically and effectively apply, we feel, only to domiciliariés of Maryland and of the reciprocating jurisdictions, and not to temporary sojourners. Our conclusion that ‘resident’ must be equated with ‘domiciliary’ in this statute is fortified by the fact that the Fund is produced by taxes imposed on all motorists, insured as well as uninsured, whose vehicles are registered in Maryland, and on liability insurance premiums collected in this State. Transients, unless covered by portions of Sec. 150 (g) other than the residence provision, would not seem to come within the scheme of this legislation.”

In Walsh Admr. v. Crouse, 282 Md. 386, 387, 194 A. 2d 107, 108 (1963) and in Rumbel v. Schueler, 236 Md. 25, 27, 202 A. 2d 368 (1964) the holding in Maddy, supra, was expressly reiterated. Compare: Liberty Mut. Ins. Co. v. Craddock, 26 Md. App. 296, 338 A. 2d 363 (1975).

Nonetheless, appellants urge upon us that the residency requirement of the statute is unconstitutional under the Equal Protection or Privileges and Immunities Clauses of the Fourteenth Amendment or under Article IV § 2 of the Constitution of the United States. They argue that judicial interpretation of the word “resident” as equated with “domiciliary” under Maddy, Walsh and Rumbel, all supra, “did not flow out of an analysis of the nature and purpose of the UCJ Law nor does it now comport with constitutional standards.”

Constitutionality

Appellants rely upon Memorial Hospital v. Maricopa County, 415 U. S. 250, 94 S. Ct. 1076, 39 L.Ed.2d 306 (1974); Dunn v. Blumstein, 405 U. S. 330, 92 S. Ct. 995, 31 L.Ed.2d 274 (1972) and Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). Their reliance is misplaced. The statute in each of the cited cases imposed durational residential requirements upon: (a) health and welfare essentials (hospital care); or (b) a fundamental political right (voting); or (c) the basic necessities of life (welfare payments).

The very language of the Supreme Court in Memorial Hospital, supra, at page 255 [1080-81], [313] itself demonstrates the distinction between the statutes struck down in the three cited cases and the subject statute:

“Even a bona fide residence requirement would burden the right to travel, if travel meant merely movement. But, in Shapiro, the Court explained that ‘[t]he residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites? for assistance and only the latter was held to be unconstitutional. Id., at 636, 22 L Ed 2d 600. Later, in invalidating a durational residence requirement for voter registration on the basis of Shapiro, we cautioned that our decision was not intended to ‘cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements. ’ Dunn v. Blumstein, 405 U. S. 330, 342, n. 13, 31 L.Ed.2d 274, 92 S. Ct. 995 (1972).” (Emphasis added)

In the subject case the statute imposed no durational residential requirement inhibiting the fundamental right to migrate from state to state.

Section 7-602 applied equally to all persons within the boundaries of the State. Its accruing benefits were not conditioned upon durational prerequisites. A person claiming its benefits was required only to demonstrate that she was a resident of the State as that status had been “appropriately defined and uniformly applied” to all sojourners within its borders. There was, in short, no impingement of fundamental constitutional rights.

In the absence of such impingement, the State is not required to make a showing that the statute is “necessary to promote a compelling governmental interest.” Shapiro, supra, at 634, [1331], [615]. Rather, validity of the statute will be determined under the test clearly and succinctly stated in Md. St. Bd. of Barber Exmrs. v. Kuhn, 270 Md. 496, 507, 312 A. 2d 216, 222 (1973):

“In cases brought under the Equal Protection Clause of the Fourteenth Amendment, but not involving so-called ‘suspect classifications’ or ‘fundamental personal rights,’ the Supreme Court and this Court have applied the more traditional ‘rational relationship’ or ‘fair and substantial relation’ tests, which require, at a minimum, that a statutory classification bear some ‘rational relationship’ to a legitimate state purpose.”

The previously quoted language in Maddy, supra, clearly demonstrates that the statute meets this test and is valid.

Applicability of § 7-602 to Appellants

Wfc^t we have said thus far applies equally to both appellants. Each is bound by the terms of this valid statute and must show that she qualifies as a domiciliary of this State.

Common to both HI ants is the critical circumstance that they were minor:, (Holly age 18 years) (Josiah aged 19 years) at the time of arrival within the State of Maryland and at the time of the accident in which they were injured.

It is uniformly held that the domicile of the father is in legal contemplation the domicile of a minor child, and an infant cannot acquire a domicile on her own volition. 25 Am.Jur.2d Domicile, § 63 (1966); 1 Restatement, Conflict of Laws (2d) § 22 (1971); Sudler v. Sudler, 121 Md. 46, 50, 88 Atl. 26, 28.

The mere fact that the appellants were minors does not mean, however that this universally recognized rule of law is necessarily dispositive of the subject case. This is so because there is, in some jurisdictions a recognized exception that an emancipated child may acquire a domicile of choice. The exception is thus stated in 1 Restatement, Conflict of Laws, supra, at page 90:

“f Emancipated child. An emancipated child may acquire a domicil of choice. A parent has no power to control the domicil of an emancipated child.”

We pass, accordingly, to a consideration of the question whether the appellants were emancipated.

The early case of Mercer v. Walmsley, 5 H & J 27 (1820) makes plain that emancipation of an infant must emanate from the parent and not the child, saying at page 34:

“* * * the right of the father to the services of the daughter, during minority, depends not on her. Let her design to leave him be ever so determined, she has no legal right so to do, or when from under his roof, she has no right to form a determination never to return; and if such a determination is made, still the father has a right to compel her return, and have the benefit of her services. Nor is it clear to me, that even with the consent of the father, that she should permanently leave his protection, would the case be materially different; for as no contract between the father and minor daughter would be binding, a stipulation or understanding that she should permanently leave him, and shift for herself, would be nugatory. But that is not the case now before the Court.”

Bullett v. Worthington, 3 Md. Ch. 67 (1851), expressed a similar view, the Court saying at page 71:

“* * * the services were rendered whilst the son lived with the father, and during his minority. Under such circumstances, and, indeed, even though the son did not live with the father, still, being a minor, the father was entitled to his services, and could maintain an action for them, unless, by some act of his oum, he had divested himself of his control over him. ’’(Emphasis added)

Greenwood v. Greenwood, 28 Md. 369, 381 (1868) although recognizing that a father is entitled to the custody of his minor children and to the value of their labor during minority, declared that such right may be destroyed “by some act of his own.” The Court in Greenwood went on to say at 384: “In what manner and by what acts this can be done must depend on the special circumstances of each case.”

Malone v. Topfer, 125 Md. 157, 93 Atl. 397 (1915), and Lucas v. Maryland Drydock, Co., 182 Md. 54, 31 A. 2d 637 (1943) recognized the doctrine of emancipation resulting from the forfeiture of parental rights by reason of abandonment or mistreatment.

Bradford v. Futrell, 225 Md. 512, 171 A. 2d 493 (1961), discussing tangentially the question of emancipation, said at 520 [497]:

“Whether the entering of a dependent child into the military service constitutes an emancipation falls under the general principle that whether emancipation has occurred in a given case is a factual question.”

We distill from those decisions the following general principle: emancipation of a minor may not be achieved by the voluntary action of the child but may result (a) from abandonment or mistreatment by the parent, or (b) from a voluntary relinquishment of parental rights.

In the subject case there is not the slightest evidence of neglect, misconduct or abandonment by the parents of either Holly or Josiah. We turn, accordingly, to the question whether emancipation of either or both has occurred by reason of voluntary relinquishment of parental rights.

The case of Parker v. Parker, 94 S.E.2d 12, 13 (S. Car., 1956) stated what we believe to be the proper test governing determination of the emancipation issue in a given case:

“Emancipation during minority results not from any act of the child alone, but primarily from agreement of the parent, which may be either express or implied. It may be either partial or complete. If partial, it frees the child for only a part of the period of its minority, or from only a part of the parent’s rights, or for some special purpose, such as the right to earn and spend its own wages. If complete, it completely severs the parental relationship so far as legal rights and liabilities are concerned. Whether or not a minor child has been emancipated depends upon the peculiar facts and circumstances of each case, and is, therefore, generally a question for the jury. Emancipation of a minor child is never presumed, and the burden of proof is upon him who alleges it.”

The trial judge concluded from the evidence that “* * * the facts in this case are not sufficient to establish that there was, in fact, emancipation.” The trial judge’s conclusion upon this factual issue must stand unless our examination of the record shows that it was clearly erroneous. Maryland Rule 1086. Thus, if there is any competent, material evidence directly or by reasonable inference tending to justify that conclusion, we must affirm. Carling Brewing Co. v. Belzner, 15 Md. App. 406, 413, 291 A. 2d 175, 179 (1972).

No testimony by the parents of either appellant was presented to the trial judge. We are left, accordingly, to an examination of the record to determine whether emancipation must be implied as a matter of law. We think not.

Common to the claims of both is the circumstance that they undertook to pursue studies at the nursing school for three years and to bind themselves thereafter for two years of service as nurses at the Provident Hospital.

Further Evidence as to Josiah

Mary Ann Josiah was born in Antigua on January 8,1952. She was a citizen of the West Indies, in the United States on a student visa. Her parents continued to lend her financial support whenever she needed it after her arrival in Maryland. She came to the United States in April, 1971 with a plan to live with an aunt in Takoma Park and to attend Howard University in Washington, D. C. The decision to attend nursing school in Baltimore was made after arrival. She commenced her classes in September, 1971. She was not qualified for permanent residence in the United States.

Josiah’s parents had provided her with funds for her upkeep both initially and in the subsequent course of her schooling. This circumstance alone prevents us from a declaration that the conclusion of the trial judge was clearly erroneous as to Josiah. Rule 1086.

Further Evidence as to Holly

The issue as to Holly is not so clear cut. Joann Holly was born in Pennsylvania on April 6, 1953. She came to Baltimore in September, 1971 to become a nursing student at the Helene Fuld School of Nursing in Baltimore. Her parents at all times were residents of Pennsylvania. She had a Pennsylvania driver’s license. She registered to vote in Maryland — after the accident. When asked about her future plans at the time she came to Baltimore in September, 1971 she replied, “Well, I was planning to stay here for at least the next five years. I didn’t know what I was going to do after that.”

The testimony showed she was self-supporting without financial contributions by the parents subsequent to her arrival within this State. Her stay in Maryland prior to the accident and injury had been of only about two months duration. We do not regard these circumstances as conclusively establishing emancipation for the full period of her minority. Nor do they demonstrate as a matter of law, the voluntary relinquishment of all parental rights. Although the issue is close, we cannot declare, as a matter of law, that the evidence shows a voluntary relinquishment of all parental rights and obligations. We must recognize that the contractual undertaking with the nursing school was voidable during infancy. We must recognize also that the parents may have, during the minority of their child, required her to return to Pennsylvania. The trial judge was not required to assume that parental control had been fully relinquished; or parental responsibility ended.

Because we conclude that the decision of the trial judge was not clearly erroneous, we do not reach the interesting question whether the emancipation of a minor child encompasses the right to acquire a domicile of choice.

The contention that appellants may qualify under the statute as “apprentices” of Provident Hospital was not raised below. It is not before us. Rule 1085. In any event there is no evidence that either appellant qualified as an apprentice as defined in Article 100, § 96 (f).

Judgments affirmed.

Costs to be paid by appellants.

      . The Unsatisfied Claim and Judgment Fund Law was repealed by Ch. 73 § 2 of the Acts of 1972, effective January 1, 1973. Under § 1 of that Chapter, however, claims against the Unsatisfied Claim and Judgment Fund existing as of December 31, 1972 were transferred to and deemed to be claims against the Maryland Automobile Insurance Fund as therein created. (Codified as Article 48A, § 243G.)

      . See: Footnote 1, Liberty Mut. Ins. Co. v. Craddock, 26 Md. App. 296, 338 A. 2d 363 (1975).

      . Ch. 651 of the Acts of 1973 (Maryland Code Article 1, § 24,1975 Supp.) whereby the age of majority was lowered from 21 to 18 years had no application to the appellants. Section 51 of that Act provided, inter alia: “That the provisions of this Act shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this Act.”


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    RAMON J. BERNARDINI et al. v. THE STEFANOWICZ CORPORATION et al.
    [No. 305,
    September Term, 1975.]

      Decided December 31, 1975.

      The cause was argued before Moylan, Menchine and Moore, JJ.

      Richard W. Emory, Jr., and Peter S. Thompson, Jr., for appellants.

      Susan S. Miller, with whom were James J. Dawson and Cable, McDaniel, Souñe & Bond on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The question we are here asked to resolve is whether, in connection with the granting of specific performance of contracts for the purchase of lots upon which single-family residential units were to be constructed, the purchasers were entitled to an award of compensation measured not only by their out-of-pocket losses, but also by the “fair market net rental value” * of their dwellings during the period of delay in construction. The Chancellor, Saíne, J., made a total award to the appellants of $20,875, constituting their out-of-pocket losses plus interest on their deposits. They assert on appeal that the award should not have included interest on their deposits but should have included an additional sum of $27,498, representing the fair market net rental value of their homes. There is no cross-appeal by the appellee builder-developer, The Stefanowicz Corporation.

The factual context in which the issue is joined is as follows: Between February and September, 1971 some ten families entered into written agreements with Stefanowicz for the purchase of lots in the Bolling Green development of Catonsville in Baltimore County. The lots were to be improved by dwellings “in substantial accordance” with specified types of existing Model Homes. The purchase prices varied from approximately $27,500 to approximately $32,500 with completion dates 4 to 6 months from the dates of the respective agreements. In practically all instances, deposits of $2,000 were made and each purchaser was to secure his own financing.

None of appellants’ homes was ready on the dates originally specified. The delays were attributed by the builder to a variety of factors. Hurricane Agnes and other heavy rains in 1972 prevented routine progress from being made; the terrain was discovered to contain previously undetected obstacles, including rock formation and subterranean springs; and several of Stefanowicz’s subcontractors did not complete their work on time.

Nonetheless, when 7 of the 10 families instituted an equitable action on February 14, 1973 in the Circuit Court for Baltimore County, the builder ultimately admitted liability and entered into ten separate stipulations, in most of which the out-of-pocket losses were agreed upon; and in all of which the fair market net rental value of the respective homes was established. These stipulations provide the essential factual basis for this appeal, the parties having further stipulated pursuant to Maryland Rule 1026 c 2 that no part of the transcript of testimony at a hearing before Judge Raine on December 11, 1974 was necessary for the appeal. (The latter hearing was for the limited purpose of taking testimony with respect to certain claims for out-of-pocket losses upon which the parties were unable to stipulate and, it appears, to receive argument on the question of whether fair market rental value was also an appropriate measure of damages.)

The 10 stipulations reflect delays in construction ranging from 8 months to 17 months. The out-of-pocket losses, “reasonable and foreseeable,” agreed to have been sustained

because of these delays, included some or all of the following items in the case of each family:

1. Forfeiture of rent bonus.
2. Furniture storage.
3. Child’s (school) registration fee.
4. Cost of disposable diapers.
5. Child’s commutation — extra travel expenses.
6.. Interim telephone installation.
7. Increase in laundry bills because equipment in storage.
8. Extra moving expense.
9. Mortgage interest increase.
10. Loss of postponement of capital gains on sale of former house.
11. Cost of obtaining clothing and other personal possessions from storage.
12. Additional commuting expense (by husband) to place of employment.
13. Forfeiture of child’s school registration fee.
14. Increase in child’s school tuition.
15. Increase in automobile insurance (difference between city and county rates).
16. Loss of apartment deposit.
17. Expenditure to “buy out” apartment tenant.

After the court hearing on December 11, 1974, Judge Raine also allowed one of the petitioners, an F.B.I. agent, damages for loss of U. S. Government reimbursement in the sum of $1291 for relocation costs. The claim had expired because of petitioner’s inability to move into the new house.

It was further stipulated that the builder believed that the measure of damages for its admitted liability was limited to these out-of-pocket expenses. The parties also stipulated, however, an amount of compensation based upon fair market net rental value in the case of each family purchaser, should the Chancellor deem such further award appropriate. Thus, in the case of appellants Bernardini, it was stipulated that:

(a) the length of delay for which the builder was accountable was 14 months;
(b) the fair market rental value was $305 per month, or $4,270;
(c) the builder’s proper offset on the balance of the unpaid purchase price, at 6% per annum, was $2,190;
(d) the purchaser was entitled to recover simple interest at 6% per annum on the fair market net rental value of the dwelling from September 1, 1972 through December 1, 1974, in the total sum of $576;
(e) the final additional amount which would be due to Mr. and Mrs. Bernardini under this theory was $2,656.

The Chancellor, in a written opinion filed on February 20, 1975, rejected the appellants’ claims to awards based upon the theory of fair market net rental value but, as previously stated, did allow recovery of out-of-pocket losses, plus interest on the purchasers’ deposits. Judge Raine stated:

“After intensive study and consideration of the matter the court believes that the proper measure of damages are the reasonable and foreseeable expenses that the Complainants were required to make because of the Respondent’s delay in completing the dwellings.[] The Complainants argue that in addition to these damages they should be awarded compensation for the loss of use and enjoyment of their homes, and seek to equate this with the net rental value of the dwellings during the period of delay. This Court cannot find, and has not been referred to any specific performance suit of this nature where such damages have been allowed, and the authorities cited by the Complainants do not seem to be applicable. (Emphasis added.)

The Chancellor thereafter, on April 16, 1975, entered an Order for judgments against Stefanowicz for appellants’ respective stipulated out-of-pocket losses, and, in two instances, additional foreseeable out-of-pocket expenses upon which agreement between the parties had not been reached. He also ordered that interest on the deposits held by Stefanowicz during the period of delay should be paid to each appellant.* Appellants contend that they should have received the fair market net rental value of their homes rather than interest on their deposits. Stefanowicz maintains that the proper measure of damages was awarded. For the reasons next stated, we agree.

II

Neither party has cited, nor in our independent research have we discerned, a case where this precise issue — whether recovery should be allowed for loss of use of a home to be constructed, ancillary to a suit for specific performance, measured by net fair market value during the period of delay — has been decided by an appellate court.

There is a clear consensus that where the case is a proper one for specific performance the Chancellor may, as a form of ancillary relief, decree compensation or damages. 1 Pomeroy, Equity Jurisprudence, § 237 (b) (5th ed. 1941). Indeed, an early Maryland case held that unless the monetary relief was claimed in the specific performance action, it was barred by the final decree in the equity suit under the doctrine of res judicata. Walzl v. King, 113 Md. 550, 77 A. 1117 (1910). The cases abound with general rules concerning ancillary damages in suits for specific performance. Thus, in Ellis v. Mihelis, 384 P. 2d 7 (Cal. 1963), Chief Justice Gibson of the Supreme Court of California stated at 15:

“The following general rules are applicable where damages are awarded incident to a decree of specific performance: A party to a contract for the purchase cr exchange of land who is entitled to a decree of specific performance is also ordinarily entitled to a judgment for the rents and profits from the time he was entitled to a conveyance. The compensation awarded as incident to a decree for specific performance is not for breach of contract and is therefore not legal damages. The complainant affirms the contract as being still in force and asks that it be performed. If the court orders it to be performed, the decree should as nearly as possible require performance in accordance with its terms. One of the terms is the date fixed by it for completion, and since that date is past, the court in order to relate the performance back to it, gives the complainant credit for any losses occasioned by the delay and permits the defendant to offset such amounts as may be appropriate. The result is more like an accounting between the parties than like an assessment of damages. (See, e.g., Heinlen v. Martin, 53 Cal. 321, 342-3; Note 7 ALR 2d 1204, 1206).” (Emphasis added.)

The rationale that such awards constitute compensation rather than legal damages is thus expressed in Annot., Specific Performance-Delay, 7 A.L.R.2d 1204,1206:

The compensation awarded as incident to a decree for specific performance is not breach of contract and is therefore not legal damages. The complainant affirms the contract as being still in force and asks that it be performed. He cannot have it both ways, performed and broken. The situation is simply that, if the court orders it to be performed, the decree must as nearly as possible order it to be performed according to its terms, and one of those terms is the date fixed by it for its completion. This date having passed, the court, in order to relate the performance back to it, equalizes any losses occasioned by the delay by offsetting them with money payments. Often the result is more like an accounting between the parties than like an assessment of damages.” (Emphasis added.)

A leading Maryland case, Miller v. Talbott, 239 Md. 382, 211 A. 2d 741 (1965), presented the Court of Appeals with the question of monetary relief in a controversy arising out of a contract for the sale of an existing country residence in Carroll County. The Millers appealed from the final decree granting specific performance and the Talbotts cross-appealed from the denial of a recovery for losses and expenses allegedly caused by the failure of the Millers to convey on the date specified. The Chancellor, Boylan, C. J., was held to have properly decreed specific performance but to have committed reversible error, requiring a remand for further proceedings, in refusing to consider an award of compensation.

As disclosed in the opinion of Judge Barnes, writing for the Court of Appeals, the items of damages claimed by the Talbotts included additional rent on their former residence; rent for premises temporarily occupied pending the outcome of the specific performance action; costs of storing furniture, boarding pets and transporting a child to a new school in which he had been enrolled in anticipation of settlement.

The Court emphatically affirmed the rule that a court of equity has jurisdiction to decree compensation ancillary to a decree for specific performance, citing Walzl v. King, supra; Pomeroy, op. cit. supra; 81 C.J.S. Specific Performance § 162 (b) and the cases of Greenstone v. Claretian Theological Seminary, 343 P. 2d 161 (Cal. App. 1959) and Butler v. Schilletter, 96 S.E.2d 661 (S. C. 1957). With respect, however, to the “wide variety of expenses and losses” allegedly suffered, the Court withheld any ruling, Judge Barnes stating (at 394):

We are of the opinion that it is neither necessary nor feasible for us to rule at this time whether any particular item of damages is or is not recoverable in the equity suit. The question, in part, and in the first instance, is a problem of proof. We leave this question for solution to the chancellor if he finds for the plaintiffs upon the remand of the case to the lower court.” (Italics supplied.)

In the present case, Judge Raine’s opinion, previously quoted in part, stated that, “Absent any other precedent the court follows the lead of Judge Weant [successor to Chief Judge Boylan] who decided Miller v. Talbott, supra, on remand.”

We have examined Judge Weant’s carefully prepared Opinion and Decree and observe that he allowed a total of $442.50 for additional moving charges and storage of furniture and $900 for the boarding of plaintiffs’ dogs in a kennel. He denied, however, a claim for rent paid by the plaintiffs for a residence which they leased when they were unable to move into the other property under the contract. In this connection the Chancellor relied upon 81 C.J.S. Specific Performance § 162 (b) at 770 for the proposition that, “Rent paid by the purchaser seeking specific performance, for other premises, after the vendor should have conveyed, may not be made the basis for recovery.” See also, Bumann v. Maurer, 203 N.W.2d 434, 439-40 (N. D. 1972).

Upon remand Judge Weant also allowed the sum of $120.00 upon a claim for interest on plaintiffs’ deposit of $1,000 which had been paid at the time of execution of the contract. Appellee reads this portion of the decree as a holding that, in the case of a residential dwelling, the value of any “loss of use” claim is measured solely by allowing interest on deposit or other monies paid prior to actual delivery and not by allowing the fair market net value of the property. We consider this an overbroad, impermissible interpretation. The appellants, on the other hand, assail Judge Weant’s ruling insofar as it quoted the following language from 81 C.J.S. Specific Performance § 162 (d) (6) at 776 “Thus, where the purchase money has been paid and no rents or profits are recoverable by the purchaser, the purchaser is entitled to the interest on the amount paid as damages for being kept out of possession.” Appellants insist that the general rule is that rents and profits are recoverable, citing Worrall v. Munn, 38 N. Y. 137, 141-7 (1868), 53 N. Y. 185, 188-9 (1893); and emphasize that they have claimed rents and profits here, rather than interest on their deposits.

The difficulty we find with appellants’ position is that in Worrall and other cases upon which they rely in support of their claimed entitlement to “fair market net rental value,” there were residential, agricultural or commercial properties in being and generating, or capable of generating, rents and/or profits; and, in other cases, only claims in tort or for breach of contract — not the equitable remedy of specific performance — were involved. Thus, in Worrall the defendant was indisputably liable for delay in conveying to plaintiff land which contained valuable sand and clay deposits suitable for brick-making. The Maryland case of Evergreen Amusement Corporation v. Milstead, 206 Md. 610, 112 A. 2d 901 (1955) involved a counterclaim in a law action for breach of contract where an amusement park owner sought damages for lost profits based on rental value of the property during the period of delay in clearing and grading the site for a drive-in movie theatre. In Evergreen, Judge Hammond (later Chief Judge) stated, “We think the court was right in basing the damages for delay in the completion of the site on fair rental value and the actual monetary losses incurred.”

Similarily inapposite is Brewer v. Sowers, 118 Md. 681, 86 A. 228 (1912), a suit for specific performance of a contract for the sale of a 60-acre operating farm near Hagerstown in Washington County. The case involved no claim for delay in conveying the existing farm and farmhouse. The decree granting specific performance was affirmed but the Court found error, on the purchaser’s cross-appeal, in the denial to him of interest on mortgage and other monies paid by him into court. Appellants here seize upon the Court’s dictum in Sowers that the purchaser would have been entitled to the “rents and profits, or the fair rental value” from the date of settlement. While this dictum was indubitably a correct statement, its attempted application to the facts in the present appeal, involving unfinished single-family residential structures, is wide of the mark.

Equally misplaced is appellants’ reliance upon the proceedings on remand in Rocks v. Brosius, 241 Md. 612, 217 A. 2d 531 (1966). The Court of Appeals, again in an opinion by Judge Barnes, (the author of the opinion in Miller v. Talbott) affirmed a decree of specific performance of a lease agreement but remanded the case for further proceedings to determine compensation for the delay in the completion of any home and from the action of the vendor in clearing a temporary haul road (which Judge Barnes stated was “similar” to compensation for delay.) We are told that, on remand, Judge Ralph W. Powers denied many of the vendee’s out-of-pocket claims as being remote or speculative. The vendor was required, however, to pay the real 'estate taxes on the property during the period of delay. In addition, the vendee was held entitled to the rental value (the sum of $600) of an existing tenant house on the property, there being evidence that it would have brought rent in the amount of $50 per month. The Court on remand made no award for delay in the completion of'any homes.

Finally, we also find distinguishable the case of Superior Construction Company v. Elmo, 204 Md. 1, 104 A. 2d 581 (1954) which was not a suit for specific performance but rather for injunction and damages in trespass occasioned by the building operations of the defendants on land contiguous to the petitioners’ residences, which cast substantial deposits of debris, mud and silt upon the petitioners’ land. The Court there held that complete satisfaction by way of damages should take into account “loss of personal enjoyment and use, independent of and beyond the difference in market value or costs of restoration.” The Elmo case obviously involved damages in tort to compensate homeowners who were living in and enjoying the use of their homes until the defendants’ building operations disrupted their use and enjoyment. We find no fair analogy between the rule of damages there applied and that which appellants seek in the instant case.

As the California District Court of Appeal stated in Greenstone v. Claretian Theological Seminary, cited by Judge Barnes in Miller v. Talbott, supra, the fundamental, conceptual approach in the award of compensation ancillary to specific performance is that a Court of Equity, once it obtains jurisdiction of an action for specific performance, should adjust the rights of the parties and endeavor to equalize losses occasioned by the delay. The Court there stated (at 165):

“Confusion in this area has existed because of the informal use of the term ‘damages’ in connection with such an award, but it is settled that such compensation neither constitutes damages as contemplated in an action for breach of contract, nor implies legal damages.”

In Greenstone, one of the terms of the contract was that “interest, taxes, rents and fire insurance are to be prorated to date deed is recorded.” The property involved was a multi-family dwelling and rents indeed accrued during the period of the delay in the conveyance. In accordance with that provision, the opinion points out an accounting was rendered and the trial court allowed the plaintiff a credit of $34,011.20 on the purchase price in the final judgment from which appeal was taken. The Court stated (at 167):

“No judgment for net rental value was awarded, but on the contrary it was decreed ‘that plaintiff is entitled to a credit against the purchase price of the real property described in said agreement for net rents received from said real property by the defendant Seminary from September 20, 1955 to September 15,1958 in the sum of $34,011.20.’ ”

In this case, obviously no rents were generated. Neither was the appellee-developer in the position of reaping benefits as a result of his own admitted wrongdoing. There were no contractual provisions with respect to rents other than in terms of “public charges” to be apportioned at date of settlement and, indeed, several of the contracts involved contained provisions that should the seller cancel or default “for any reason all monies paid by buyers shall be returned by seller, with no further liability on the part of one to the other.” Appellants were certainly and seriously discommoded by the delay in completion of their homes. For that they have been awarded compensation for their foreseeable expenditures. Specific performance was decreed and appellants now reside in their new homes. They are substantially in the position where they would have been had their contracts been timely performed. We cannot find that it was error for the Chancellor to deny them the additional compensation prayed.

The determination of whether to award ancillary compensation in equity is ultimately within the sound discretion of the Chancellor. In two actions for the specific performance of real estate contracts, decrees reflecting different results with respect to monetary awards were affirmed on the ground that the Chancellor had not abused his discretion.

In Haffey v. Lynch, 85 N. E. 817 (N. Y. 1908), the Court of Appeals observed that the trial court

“might, under the circumstances of this case, have relieved the [vendor] from liability for such rent. The question, however, was to some extent one of discretion, and we cannot say as a matter of law that the courts below erred in refusing to grant the [vendor’s] claim [that vendee was not entitled to the rental value of the property during the period of delay] .’’At 818.

In Fleming v. O’Donohue, 138 N. E. 183 (Ill. 1923), the Chancellor declined to award vendee rents and profits from a building with two apartments for the period of delay in making conveyance. The Court there stated:

“Such an order might doubtless have been permissible . . . but we consider that the allowance of such rents and profits . . . was largely within the sound discretion of the chancellor, and under all the circumstances in the case we are not disposed to disturb his finding in that regard.” At 185.

We find here no abuse of discretion.

Decree affirmed; appellants to pay the costs.

      . The “fair market net rental value” of the dwellings was an agreed dollar figure per month, multiplied by the number of months’ delay for which the builder was accountable, plus 6% interest. This was subject to an offset of interest at 6% on the balance of the unpaid purchase price for the agreed period of delay.

      . Although designated, “Petition to Retain Funds as Security for Satisfaction of Claims,” the case was treated below as a suit for specific performance.

      . The other three families had been permitted to intervene.

      . The total amounts due pursuant to the stipulation also, of course, varied. The lowest sum was $1571; the highest was $3461.

      . The Chancellor was apparently assimilating the rule that reasonable special damages must meet the orthodox test laid down in the celebrated English case of Hadley v. Baxendale, 15 Eng. Rep. 145 (1854).

      . The average payment for out-of-pocket losses and interest on deposits was $2010.88 per family.

      . The average recovery thereby would be $4614.60 per family.

      . The Chancellor had ruled that such compensation could not be awarded under a prayer for the general relief in the bill of complaint for specific performance.

      . The Opinion and Decree was filed on March 2, 1966 in No. 10331 Equity, Circuit Court for Carroll County.

      . In the instant appeal, certain of the petitioners found it necessary to move in with relatives during the period of delay. Claims were originally made by some of them for inconvenience and discomfort and interference with marital relations but no claim for rent was interposed.

      . Proceedings on remand in the Circuit Court for Prince George’s County were in Equity No. C-2613, August 19, 1968.


author: Lowe, J.,

text:
    GEORGE J. MAAS v. DIANE MAAS LUCAS et al.
    [No. 307,
    September Term, 1975.]

      Decided December 31, 1975.

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

      Nelson R. Kerr, Jr., with whom were Kerr, Kerr & Howe on the brief, for appellant — cross-appellee.

      Richard C. Murray for appellees — cross-appellants.
   Lowe, J.,

delivered the opinion of the Court.

A proverb, much used in a part of England where estates do not long stay in one family, declares:

“The father buys, the son builds, the grandchild sells and his son begs.”

When the father buys, the father builds, the father sells and the children benefit well beyond that, which the father intended, a continued pressing of legal advantage must indeed sharpen the “serpent’s tooth” alluded to by King Lear. The father, appellant here, bought and also built upon property, one-half interest in which he [and his former wife] had conveyed to his two children as tenants in common pursuant to a marriage dissolution in 1943. Sometime after that conveyance he improved a garage on the back lot of the property by building two apartments over it.

The father instituted a suit in the Circuit Court for Baltimore County for sale in lieu of partition. In addition to the value of his one-half interest he sought reimbursement for the improvements and contribution from the children for the mortgage he had paid off after they had become half owners.

All issues on appeal relate to the distribution of the funds received from a sale of the property. When the sale was first held under court order, the children’s bid of $80,000 was accepted as the highest. However, even though time extensions were obtained to permit compliance with the contract of sale, they were forced to default. The trustees again offered the parcels for sale at public auction under order of the court “. . . to resell the property described in this proceeding at the risk and expense of the Defendants [the children].” The resale brought a purchase price of $95,500, which was $15,500 higher than the original purchase price bid at the first sale by the children.

The questions having to do with the distribution of proceeds from that sale, here raised by appeal and cross-appeal, are:

1. Should the father be compensated for the improvements he had constructed (two apartments)?
2. Should the children be awarded one-half of the apartment rentals during their co-tenancy (and between the first and second sale)?
3. Who is entitled to the $15,500 increase in the purchase price after the children defaulted?
4. Is the father entitled to contribution for discharging the prior mortgage?

The chancellor did not compensate the father for the value of the apartments,, finding that the father had not met his burden of proof. However, he sought to balance the equities somewhat by denying the children an allowance for rentals therefrom during the co-tenancy. The children were awarded the amount of money by which the final purchase price exceeded the price at the initial sale upon which they had defaulted, and were also allowed the rental payments for the apartments between the dates of the two sales. The chancellor also compelled contribution from the children for one-half of the cost of discharging a mortgage which was paid off by the father soon after the creation of the co-tenancy.

The Law

“A circuit court may decree a partition of any property ... on the ... petition of any ... tenant in common .... If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights . . . .” Real Property Art., § 14-107.

Such an action is equitable in nature so that the chancellor is accorded broad discretionary authority. In Dugan and Lyman, Trustees v. Mayor, &c of Baltimore, 70 Md. 1, 8, the Court of Appeals quoted Justice Story:

“ ‘In matters of partition’ says Judge STORY, ‘a Court founds itself upon its general jurisdiction as a Court of equity, and administers its relief, ex oequo [sic] et bono according to its own notions of general justice and equity between the parties.’ 1 Story’s Equity Juris., sec. 656 b.”

Recently, the Court of Appeals has again described the latitude allowed an equity court in distributing the proceeds of a partition sale. Judge Horney wrote for the Court in Bowers v. Balto. G. & E. Co., 228 Md. 624, 629:

“With respect to a sale [in lieu of partition] ..., we repeat what was probably first said in Story v. Johnson, 1 Y. & C. Ex. 538 (1835), 2 Y. & C. Ex. 586 (1837), that the ‘Court, in decreeing a partition, does not act ministerially and in obedience to the call of those parties who have right to partition, but founds itself upon its general equitable jurisdiction/ and will ‘adjust the equitable rights of all the parties interested in the estate.’ .. . And see Meyers v. East End Loan & Sav. Ass’n, 139 Md. 607, 613 . . ., holding that courts of equity do not hesitate to adapt their methods to the exigencies of justice or to protect the equitable rights of those concerned . . . .”

Notwithstanding the broad discretion allowed the chancellor, there are certain general principles and guidelines to which he must adhere.

1. Improvements

One such principle relates to the compensation to which a co-owner may be entitled for the value of any improvement he has put upon the property. The chancellor below observed that:

“Although there is no Maryland case directly in point the general rule of law seems to be that a co-tenant who makes a substantial improvement to the property, such as the apartments constructed by George Maas, is entitled to be compensated, but only to the extent to which the improvements are shown to have enhanced the value of the property at the time of sale .... the burden is on the tenant who makes the improvements to show that they enhanced the value of the property, and it is in this respect that the plaintiff has failed to support his claim .... The plaintiff here relies on the testimony of Mr. Harry Riepe, an experienced and well known appraiser, but this court has read his testimony carefully and at no time did the witness ever state that at the time of sale the property was more valuable because of the construction of the apartments over the garage on the rear portion of the tract. . .

Appellant agrees in his brief that:

“If this assertion by the Trial Court is factually correct, Appellant may not prevail on this point of his appeal.”

We find the court’s assertion to be correct both legally and factually. While it may be true that there is “no Maryland case directly in point . . .” there is certainly Maryland authority espousing the principle as being the law of Maryland. In Williams v. Harlan, 88 Md. 1, 5 the Court said:

“There can be no question that as between Win. H. Greenway, and his co-tenants he would be entitled to a lien for the amount expended by him on improvements and repairs made upon the joint property with their knowledge or at their request or in good faith for the benefit of all. This doctrine is fully settled by all the authorities. Mr. Pomeroy in his Equity Jurisprudence, section 1289 says: ‘When two or more persons are joint-owners of real or other property, and one of them in good faith for the joint benefit, makes repairs and improvements upon the property which are permanent, and add a permanent value to the entire estate, equity may not only give him a claim for contribution against the other joint-owners with respect to their proportional shares of the amount thus expended, but may also create a lien as security for such demand upon the undivided shares of the other proprietors.’ To the same effect 18 Am. and Eng. Encyl. of Law, p. 602; Green v. Putman, 1 Barbour 500; Hall v. Piddock, 21 N.J. Eq. 311; Gavin v. Carling, 55 Md. 530.”

In an annotation entitled “Adjustment on partition of improvements made by tenant in common,” 1 A.L.R. 1189, the rule for “Compensation out of proceeds of sale” concludes:

“ ... if the improvements made by one co-tenant add to the amount which the property will bring on the partition sale ordered, the amount so added is to be paid to him out of the proceeds of the sale, in addition to his pro rata share of the proceeds. ...”

The author of the annotation lists Maryland as being in accord with this proposition, citing Hogan v. McMahon, 115 Md. 195, 202-3, and invites comparison with Gittings v. Worthington, 67 Md. 139.

However, as Judge Raine pointed out, the extent of a co-tenant’s right to compensation for improvements is the extent to which his improvements enhance the value of the property at the time of sale. 59 Am.Jur.2d, § 53. Thus,' compensation based upon the original cost of the improvement or even the replacement cost is not allowed “because it might result in the other owners being improved out of their property by an extravagent or unbusinesslike co-tenant, and the improvement may have depreciated at the time of the sale.” Anno. 1 A.L.R. 1189,1210.

A review of the testimony of appellant’s expert witness affirms Judge Raine’s observation. The testimony elicited was based upon replacement cost rather than on the amount by which the property was enhanced by virtue of the improvements at the time of sale. We certainly find no abuse of discretion in rejecting the testimony as failing to establish a foundation for compensation. Cf. Trainer v. Lipchin, 269 Md. 667; Stratakis v. Beauchamp, 268 Md. 643. Nor do we find the chancellor’s conclusion that the tenant’s improvements had not been shown to have enhanced the value of the property to be “clearly erroneous.”

2. Rent

Although a co-tenant is normally entitled to an accounting for rent for three years prior to suit, Colburn v. Colburn, 265 Md. 468, 474, the chancellor refused to award to the children any rent which accrued prior to the first sale. In doing so, he expressly exercised his broad equity discretion in distributing the proceeds of a partition sale, as heretofore noted. The chancellor’s opinion said:

“Ordinarily, one co-tenant must account to the other for rents received from third parties. On the other hand the court has the power to adjust the equities between the parties. Even though the facts in McLaughlin v. Barnum, 31 Md. 425, are different this court reaches the same result, for to do otherwise would be inequitable. Where the costs of the improvements were borne by George Maas and contribution to him has been denied herein, it would be a gross inequity to deprive him of the net rental income. As pointed out by the defendants it would be inequitable, if not outrageous, to deny the children an off-set for the rents against an allowance to the father of the credit for improvements. It would be equally inequitable to deny the father’s claim for improvements, but to allow the children to share in the rental income that flowed solely from the improvements.”

We find no error. In Gittings v. Worthington, 67 Md. 139, 149, the Court said:

“It is undoubtedly within the power of a court of equity to adapt its methods to the exigencies of justice, ... for the purpose of relieving the hardship of a particular case.” (recited with approval in Godwin v. Banks, 89 Md. 679, 688 relating again to partition).

The chancellor was clearly within his authority. We note, however, that he did not attempt to apply that discretion to the rents that accrued between the first and second sale of the property, and for good reasons hereafter stated.

3. Overage

Upon default following their successful bid at the first sale, the. children, by decree, bore the risk that the resale might bring less than the bid they had defaulted upon. Mealey v. Page, 41 Md. 172, 183. Fortune smiled on them, however, and the resale brought more, not less, than their original bid. The chancellor awarded the children the $15,500 excess, and we think properly so.

Miller, Equity Procedure, § 526 explains the resale procedure under Chapter XXVI entitled “SALES UNDER DECREES,” citing Mealey, supra, as authority:

“§ 526. Disposition of proceeds of sale. — When a re-sale is made the proceeds are to be disposed of as follows: the costs, fees and expenses of the re-sale, including the proper commissions, are to be deducted; and also the amount of the original purchase money due, with interest from the date of the first sale to the date of the receipt of the purchase money of the second sale. The proceedings for a re-sale, after final ratification, treat the first contract as binding on the original purchaser. The property is re-sold as the property of the defaulting purchaser, and at his risk. He is therefore entitled to any excess in the proceeds of sale at the re-sale, just as he would be responsible for any deficiency. The purchaser is to be charged with the whole purchase money and costs of the re-sale, and credited with the payments he has made, and with the proceeds of the second sale. If the latter amounts are not sufficient to pay the sum for which the property was first sold, the purchaser is to be charged with the deficiency. The application of the cash paid as a credit on his purchase is in no sense a forfeiture inasmuch as he is entitled to any surplus which may remain.” [footnotes omitted].

The chancellor followed this directive to the letter. As our case law indicates, so have numerous other chancellors in Maryland. The theory was explained in State v. Hoboken Bank, 84 Md. 325, 330 that:

“ . . . under a judicial resale the property is in fact again put under the hammer, it is put there not as a new, distinct independent procedure, but as a means and solely as a means to realize the money which the original but defaulting purchaser failed to pay. The resale takes place under the original decree, supplemented by an order. It is made by the same trustees, in the same proceedings and with a view to pay off the same indebtedness for the payment of which the property was sold in the first instance, and the money realized by it is always applied precisely as would have been applied the money bid at the original sale had that money been paid by the first purchaser. The resale is simply an execution of the decree for a sale. Its very name imports that it is not such a new sale as to be a distinct proceeding.”

The rationale is stated with simplicity in Cont. Tr. Co. v. Balt. Refrig. Co., 120 Md. 450, 456 which explains that where the trustee at a sale has accepted a purchaser, and the sale has been approved and ratified, such purchaser becomes the equitable owner of the property. The first contract of sale was not set aside, but the re-sale “was a summary proceeding for the enforcement of that contract, and the property was resold as the property of the purchaser and at its cost and risk.”

The same ratio decidendi was applied by the chancellor to the rents for the period between the two sales. That ruling is supported by rulings of the Court of Appeals from at least as early as 1868, until at least as late as 1968. In Farmers’ Bank of Md. v. Clarke, 28 Md. 145, 156 it was stated:

“As the purchaser is made to bear all loss by depreciation subsequent to the time of sale, he should be entitled to all profit that he may be able to make of the property after that time.”

In Merryman v. Bremmer, 250 Md. 1, 8, Judge Barnes wrote for the Court that:

“The purchaser is entitled to the rents and profits of the land sold as he has become the substantial owner of the property. He is not only entitled to possession of the property, but it remains at his risk, even though legal title may not be conveyed. Farmers’ Bank v. Clark, 28 Md. 145 (1868). Miller, Equity Procedure, § 512, page 604 (1897). If the land appreciates in value that benefit accrues to the purchaser; if it depreciates in value that is the purchaser’s loss.”

None of these cases involved the precise factual posture before us. Here the defaulting purchasers were also beneficiaries of the sale. Because of their purchase at the original sale and subsequent default, they have realized a greater amount of money as their share of the distribution than did the father. This resulted from the chancellor’s division of the original purchase price between the co-tenants and his subsequent award of the entire excess of the second purchase price over the first to the defaulting purchasers. While this division is founded upon sound judicial precedent, in this particular case such a distribution allows one tenant to deprive his co-tenant of the true value of the property. It might have been avoided had Judge Raine been asked to order some procedure upon default other than sale at the original purchaser’s risk which he was empowered to do under Md. Rule BR6, § c which provides:

“In case of default by the purchaser in a sale reported to the court, the court, on application, . . . may order a resale at the risk and expense of such purchaser, or may take such other action as justice may require. ” (Emphasis added).

4. The Mortgage Pay Off

At the time of the dissolution of the marriage in 1943, appellant and his wife conveyed the property by straw deeds to a straw party who reconveyed it to appellant and his children as tenants in common. Both straw conveyances warranted the property specially and contained covenants that the grantors (parents) had done:

“no act, matter or thing whatsoever to encumber the property hereby conveyed.”

There was in existence at that time, however, a mortgage on the property executed by the real grantors, appellant and his wife, (as opposed to the straw party to whom they had represented that warranty). Less than one year later, appellant discharged the mortgage by full payment of the $4,770 balance due. The children did not assume any obligation under the mortgage, nor was the mortgage assigned to appellant upon discharge for subrogation or otherwise. The payment was made and full release recorded.

Citing Hogan v. McMahon, 115 Md. 195, 203, appellees, as cross-appellants, recognize that:

“ ‘Where a tenant in common discharges a mortgage upon the joint property, equity treats him as an assignee of the mortgage as against his co-tenants interest in the property, and this though no actual assignment is made.’ ”

They further concede (this time, citing Aiello v. Aiello, 268 Md. 513) that the right of contribution can be enforced by obtaining an assignment, or by asserting a right of subrogation as a surety, or by enforcing an equitable lien against the co-tenant’s interest. See also annotation, 48 A.L.R.2d 1305.

However, they contend that the father no longer has such relief available because of the lapse of over 25 years after he had a right to seek such relief. They base this conclusion on one or all of three equitable and legal reasons: laches, limitations and/or estoppel.

We find that the court below erred in awarding the father contribution for the discharge of the mortgage, although the chancellor’s motivations were unquestionably equitable:

“it would be inequitable, even outrageous, to allow the children to force their father to assume the whole burden of the mortgage when they received the benefit of his payment discharging the mortgage.”

Notwithstanding that “courts of equity do not hesitate to adapt their methods to the exigencies of justice or to protect the equitable rights of those concerned . . .”, Myers, supra, 139 Md. at 613, there is a barrier which even the “exigencies of justice” may not penetrate.

Here a presumption of a gift to appellant’s infant children, Brandenburg v. Harshman, 193 Md. 104, 110; Quillen v. Bell, 158 Md. 677, 683; Fister v. Fister, 222 P. 2d 620 (Colo.), by his having paid off the mortgage, is bolstered by deeds declaring the property was conveyed unencumbered. The children were the objects of the father’s natural bounty which “is of itself a circumstance sufficient to raise an inference that a gift was intended. .. .” Cf. Restatement (Second), Trusts, § 442 b; Lacey v. Van Royen, 259 Md. 80, 88-89. In light of the total absence of evidence to overcome the inference of a gift, the express conveyance “without encumbrances” from the parents through 'a straw party, and the release of the mortgage by the father with no attempt to secure a right to contribution by subrogation, assignment or lien (see Aiello v. Aiello, 268 Md. 513, 519); no equitable right in the father has been shown entitling the chancellor to balance the equities by forcing the children to contribute to the pay off of a mortgage which occurred more than 20 years prior to the distribution.

The authority upon which a co-tenant is ordinarily entitled to contribution for discharging a mortgage traces to Hogan v. McMahon, supra, relied upon by both parties. Further scrutiny of that authority revealingly distinguishes it from the facts of this case. Hogan relies primarily upon two cases, one from Maine and one from Maryland preceding Hogan.

The Maine case, Look v. Horn, 97 Me. 283, is quoted as saying:

“ ‘Where a mortgage is discharged on payment made by one of the joint mortgagors, or his successors in interest, it may be treated in equity as still subsisting for the protection of the party making payment, or the delinquent’s share in the mortgaged premises may be regarded as subject to a lien for the amount paid on the mortgage for his benefit.’ ” (Emphasis added). Hogan v. McMahon, 115 Md. at 203.

Here the children were not “one of the joint mortgagors,” they were not indebted at all. The joint mortgagors were the father and his former wife. If not indebted, they were not delinquent and, consequently, there is no “delinquent’s share in the mortgaged premises” to which a lien could attach.

The Maryland authority is more direct, if less explicit. Parsons v. Urie, 104 Md. 238 holds that when one or more of several tenants in common pays the joint mortgage debt on their land, he is entitled to have the mortgage kept alive so as to secure reimbursement of the amount paid from his co-tenants. That case reasons first from the more basic premise that:

“It must be conceded that the general principle is that the payment of an incumbrance by one whose duty is to pay extinguishes it, although there are exceptions to the general rule which are as well settled as the rule itself.” Id. at 248.

One of these well settled exceptions was expressed and applied as controlling.

“It is well settled that if one tenant in common pay a mortgage debt, he can ‘keep the mortgage on foot until reimbursed the moiety paid for the other tenant in common.’ Stebbens v. Willard, 53 Vt. 665; Look v. Horn, 97 Me. 283.” Id. at 251.

Although the exception noted in the Maine case that the co-tenant was also a co-mortgagor was not expressed as a qualification to the rule laid down in Parsons, we note that the Court in Parsons looks to the Maine case for its authority. We also note that Parsons ’ facts indicate that the co-tenants were also mortgagors. The father provided us no reply brief as cross-appellee, and we know of no authority that would permit the chancellor to impose a personal debt upon the children where none ever existed. Upon remand the children should be relieved of the obligation to contribute to their father’s mortgage which he discharged over a quarter of a century ago.

Judgment affirmed in part and reversed in part.

Case remanded for amendment of the decree in conformity with this opinion.

Costs to he divided equally.

      . William Shakespeare’s, The Tragedy of King Lear, Act I, Scene IV, 1. 295.

      . Md. Code, Art. 21, § 14-107 contains the precise section under which the partition took place. The new language used above was simplified for purposes of clarity and style but remained substantially the same.

      . Although the phrase “joint tenants” was used in Williams v. Harlan, the case involved a tenancy in common.

      . The stipulation is that the mortgage was discharged November 18, 1943. The release thereon shows a date of March 3,1944.

      . Even the infants through a trustee.


text:
    ROSE J. PICONE et al. v. DONA TALBOTT
    [No. 322,
    September Term, 1975.]

      Decided December 31, 1975.

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

      Barry T. Covington, with whom was E. Allen Shepherd on the brief, for appellants.

      PageJ. Digman for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellants ask us to review the sufficiency of the evidence upon which a jury of the Circuit Court for Prince George’s County returned a verdict against them for malicious prosecution and defamation. They also ask us to find reversible error because the verdict was returned against both appellants equally for compensatory and punitive damages, notwithstanding the fact that the case presented to the jury against appellant Picone was for malicious prosecution only, while that against appellant Hall was for defamation as well as malicious prosecution.

Both torts arose out of the same set of circumstances. Rena A. Hall handled the leasing arrangements of a small office building owned by her mother, Rose J. Picone. In November of 1970, Hall leased the premises to ITS Company by whom the appellee, Dona Talbott, was employed to provide limited tax consultant services to the public. Subsequently, an altercation over rent arose which provoked Hall into affixing several “for rent” signs to the building, which signs were removed by employees of the ITS Company, the lessee. As additional signs were replaced, they were precipitously torn down.

Hall then obtained arrest warrants for two of the officials of the ITS Company after, which she once more affixed her signs to the building. She testified that Talbott removed the signs on this occasion causing her to return to the police station where she had a warrant issued for Talbott. There was direct contradiction of testimony as to whether Talbott removed the signs. Talbott explained that they were removed by the “main office” and not by her. Hall produced testimony of witnesses who claim to have seen Talbott remove them. Whatever may have been the truth, Talbott produced further testimony of a conversation in the presence of another whereupon Hall said to Talbott either “If you touch my signs again I will have you arrested” or “Goddamn you, Dona, if you take down another sign I’m going to swear out a warrant for your arrest.” Presumably, the defamation claimed is not the invocation of the wrath of the Almighty, but rather the use of the adverb “again” giving rise to the implication that Talbott had previously removed Hall’s signs. This grievous accusation is at the root of Talbott’s action for defamation.

Of greater significance were the arrest warrants and their aftermath. While at work with a customer, Talbott was arrested by a uniformed officer and, in front of a considerable crowd of spectators,

“[t]he police were trying to arrest her and handcuff her and take her in the paddy wagon with them.”

The arrest was thus accomplished to the chagrin of a distraught appellee crying and “on the verge of hysterics.” She was charged with the wilful and malicious destruction of property in violation of Md. Code, Art. 27, § 111. When she appeared for trial four months later, the State produced no witnesses and she was acquitted.

Malicious Prosecution

Without belaboring the question of whether the evidence of malicious prosecution was sufficient as to appellant Hall, suffice to say that we concur with the action of the trial judge below in submitting the issue to the jury. The trial for malicious destruction of property initiated by Hall was terminated in appellee’s favor; a want of probable cause was inferable from the manner in which it was terminated, i.e., dismissal for lack of prosecuting witnesses. From that want of probable cause (the inference of which was bolstered by affirmative evidence that appellee had not removed appellants’ signs) the jury could have inferred malice. These factors satisfy the requisites of the tort of malicious prosecution as set forth in Durante v. Braun, 263 Md. 685, 688; Banks v. Montgomery Ward & Co., 212 Md. 31, 38, and others. Mindful that we must view the evidence and all possible inferences therefrom in a light most favorable to plaintiffs case when reviewing a lower court’s denial of a motion for a directed verdict, Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173 and see Durante, supra, 263 Md. at 689, we find no merit in appellant’s contention that “it was clearly erroneous for the Court not to direct [the malicious prosecution] count out at the close of the Plaintiffs case since the evidence clearly established probable cause [for the arrest].”

No direct issue as to the agency relationship between Hall and Picone is here raised. However, we note in passing that Picone’s business relationship with her daughter, to which she herself testified, fulfilled the criteria of principal and agent. Therefore, Picone would not be relieved from liability even if she was unaware that the particular act was to be done by her daughter. Nor would she be exonerated if the injury was due to her daughter’s wilful and wanton conduct:

“ ‘The question of liability does not depend on the quality of the act, but rather upon the question whether it has been performed in the line of duty and within the scope of the authority conferred by the master.’ ” Lewis v. Accelerated Express, 219 Md. 252, 256.

Appellant Picone offered no evidence legally sufficient to show that Hall was not engaged in the course of her employment and therefore not her agent. Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210.

Moreover, the deposed testimony of appellee’s employer permits a logical inference that Picone knew of the arrest warrants and ratified her daughter’s action in procuring them. Mr. Thomas Hefferon testified:

“ ‘Okay. I called her up because I was aware there was warrants out for my arrest, my brother’s arrest, and Mrs. Talbott’s arrest ... I told her we were going to move out in another eight days or so anyway . . . but for the balance of the income tax season we did not want excessive ‘for rent’ signs on the building, if she could talk to her daughter about that, keeping the signs down and also have the warrants for our arrest rescinded. She said she would look into it and call me back.’ ”

He then described the conversation of Picone on the return call:

“ ‘She told me that she talked to her daughter and she fully agreed with her daughter on the warrants, . . . and she definitely would not drop the warrants.
‘And I asked her again to please drop them.. . .
‘She again said she would not, she would not have her daughter take the warrant, or recall that, and she agreed 100 percent vnth her daughter's actions” (Emphasis added).

We think this is sufficient to raise a jury question as to whether or not Picone ratified the acts of her daughter.

“ ‘If the prosecution was previously authorized or subsequently ratified, or if within the scope of the servant’s or agent’s employment, the employer or principal is liable; otherwise he is not.’ ” Nance v. Gall, 187 Md. 656, 671.

Buttressing that evidence of ratification is Picone'. own deposed testimony which was introduced against her:

“ ‘Question: So if Mrs. Hall brought in people to rent the place and rerented it after Hefferon left, this would be proper for her to do for you?
‘Answer: Right.
‘Question: And you would not object to her doing that, would you?
‘Answer: No, because she was in charge.
‘Question: And she was in charge for who? For you, was it not?
‘Answer: Yes.
‘Question: All right, let me put it in different words. It was all right with you to use whatever procedures she thought necessary?
‘Answer: Right.
‘Question: Did you reprimand your daughter for making out this warrant after you found out about it?
‘Answer: No.
‘Question: Do you think she acted properly?
‘Answer: In my estimation ... In my estimation I think she acted properly. She was destroying her property.
‘Question: All right. After you found out and your daughter told you what she did, did you approve of what she did? Yes or no, that’s all.
‘Answer:- I’ll give you my answer. Under the circumstances, under the conditions, yes, I would have approved. I approve and I would have done the same thing.’ ” (Emphasis added).

This testimony itself sufficiently generated a jury issue as to agency, scope of agency and ratification.

Defamation

We come now to the question of sufficiency of evidence of defamation, a term used generically by appellant to include libel and slander, all of which were contained in the third count. Whether the written charges made by appellant Hall could be sufficient to support libel, or whether they are absolutely privileged, was a question argued peripherally below and raised and argued here upon appeal. Appellant Hall restricts her contention upon the third count regarding slander to a single issue:

“The words allegedly uttered by Mrs. Hall did not amount to actionable slander.”

The record reveals that the precise words, which were published by being expressed in the hearing of another on a public parking lot, were repeated by the witness to be:

“ ‘Well, I heard Mrs. Hall say to Mrs. Talbott, ‘Goddamn you, Dona, if you take down another sign I’m going to swear out a warrant for your arrest.’ ”

We think these words are sufficient to imply that appellee had unlawfully performed the act accused in the past contrary to appellants’ contention that the words conveyed a future intent. Parenthetically, we note that contrary to our subsequent admonition in Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29, the trial judge did not decide preliminarily whether the words and behavior of the speaker were actionable per se but permitted that question to be decided by the jury. We noted in Cheek that the Court of Appeals has held that:

“ ‘ . . . ordinarily it is the responsibility of the court, when required to do so, to rule as a matter of law (and not the duty of the jury to find as a fact) whether the words and behavior of a speaker are actionable per se.’ ” Cheek, 28 Md. App. at 40, citing American Stores v. Byrd, 229 Md. 5, 15.

In that case, as in this one,

“ ‘ . . . inasmuch as there was no objection to the instructions, we need not decide . . . whether the slanderous per se character of the alleged defamatory words and behavior were properly submitted to the jury.’ ” Id. at 40.

Appellants’ argue that even if the words allegedly uttered do accuse appellee of a crime, it is not the type of crime this Court considers to be serious enough to make those words actionable per se. Had Cheek been decided before this appeal, appellant might have sought solace therefrom. That decision notwithstanding, we are at a loss as to why the issue of whether the words were actionable per se seems so compelling to appellants. The historic distinction between slander per se and slander per quod centers upon the need for proof of special damages. In the former, the injurious character of the accusation is a fact of common notoriety, necessarily imparting damages and therefore not requiring proof of special damages. In the latter, the derogatory meaning of the words must be explained by colloquium and special damages must be proved.

In the case at bar, there was sufficient evidence for the jury to find a defamation from the manner, circumstances and surroundings within which the words were spoken and there were special damages proven in the nature of medical bills for treatment of a condition which could have been partially attributable to the slander as well as to the circumstances of prosecution. Since special damages were proven, it is irrelevant whether the words complained of constituted slander per se or per quod.

More troubling to us is the libel prong of this amalgamated count. Appellee’s contention as to libel, as argued below, was that Hall communicated to the magistrate in Prince George’s County that the plaintiff had committed the crime with which she was eventually charged, and that this communication, which was put into writing in the form of a warrant, constituted libel.

This contention is shown in count III of the declaration where it is expressed in its totality:

“.. . that said false charges sworn to by the defendants’ agent were written down and recorded in the permanent arrest and criminal records in Prince George’s County, Maryland;. . . .”

Appellant Hall argues error was committed when the court failed to grant her motion for a directed verdict as to the third count because “no action will lie for words spoken or written in the course of any judicial proceeding” citing Di Blasio v. Kolodner, 233 Md. 512 and Prosser, The Law of Torts. Di Blasio describes the distinction between absolute and qualified privilege, and explains that an absolute privilege extends to defamatory statements uttered by privileged parties or witnesses. However, its holding extends an absolute privilege to pleadings in a civil suit. Prosser, on the other hand, speaks in generalities and only marginally supports appellants’ contention:

“The immunity extends to every step in the proceeding until final disposition, although it does not cover publications made before commencement or after termination. Conversations preliminary to the proceeding have given some difficulty. Although there is some authority to the contrary, the better view seems to be that an informal complaint to a prosecuting attorney or a magistrate is to be regarded as an initial step in a judicial proceeding, and so entitled to an absolute rather than a qualified immunity.” (footnotes omitted), Prosser, The Law of Torts, (4th ed.) Chap. 19 at 780-781.

No extended review of the authorities in Maryland, as was done by Judge Sybert in Kennedy v. Cannon, 229 Md. 92, seems necessary here. One case, unmentioned there — or by appellant, expressly places Maryland among those whom Prosser describes as holding the “better view.” In Bartlett v. Christhilf, 69 Md. 219, 224, Judge McSherry provides a classic example of matters absolutely privileged:

“ ‘ . . . Therefore, if a man goes before a justice of the peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him, the plaintiff cannot have an action for a libel in respect of any matter contained in such articles, for the party preferring them ‘has pursued the ordinary course of justice in such a case; and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain, for fear of infinite vexation.’ There is a large collection of cases where parties have from time to time attempted to get damages for slanderous and malicious charges contained in affidavits made in the course of a judicial proceeding, but in no one instance has the action been held to be maintainable; but the libeller may be punished, and the abuse repressed by prosecution for perjury, the result of which is to make the libeller infamous if he is convicted.’ ”

Christhilf is unequivocal and provides example after example of privileged writings, all relevant here.

Although appellants are correct in their contention that, under Maryland law, they are immune from liability as to the written allegations in the arrest warrant, we fail to see how they were harmed by the lower court’s erroneous ruling as to that issue. The Court of Appeals has ruled that before error is reversible it must be injurious, State v. Eye, Ear, Etc., Hospital, 177 Md. 517, 522; Hasten v. Hasten, 159 Md. 329, 334; and the burden is on the appellant in all cases to show prejudice as well as error. Rippon v. Mercantile-Safe Dep., 213 Md. 215, 222. Whether the sentence in the declaration espousing the “libel” was clearly demurrable, appellants failed to single out the issue prefatorily. Although argued as a reason for directing a verdict as to the defamation count generally, appellant raised no question that the single phrase relating to libel should be stricken when the judge expressed his inclination to deny the motion for directed verdict for the express reason that he found evidence of slander in the statement of Hall that implied appellee had previously destroyed the signs. The judge made no mention of the libel charge in his instructions nor was it made an issue elsewhere in the record. Since the defamation count was supported by evidence of slander, the single statement of libel in the declaration and the use of the term in conjunction with slander and defamation in the instructions were not prejudicial, although the libel alone was clearly insufficient to support a verdict because of its absolute privilege. It is hoped that the practice of pleading libel and slander in a single defamation count is not prevalent.

The Verdict

Finally, we arrive at the verdict. Although the malicious prosecution count (Count I) stood as against both appellants, Picone and Hall, the defamation count (Count II) was stricken as to Picone and let stand as to Hall. The jury’s verdict failed to recognize a distinction:

“THE DEPUTY CLERK: Madam Foreman, what say you? Do you find you find your verdict for the plaintiff Dona Talbott, or for the defendants Rena Hall and Rose J. Picone?
THE FOREMAN: On Count 1 and Count 3 for the plaintiff.
THE DEPUTY CLERK: Against which defendant?
THE FOREMAN: Against Mrs. Hall and Mrs. Picone.
THE DEPUTY CLERK: What compensatory damages do you assess?
THE FOREMAN: Five thousand dollars.
THE DEPUTY CLERK: What punitive damages do you assess?
THE FOREMAN: Fifteen thousand dollars.”

Although appellants demanded and received a poll of the jurors, they did not raise either objection or question as to the verdict before the jury was discharged — nor does the record show an issue raised below thereafter. Had the issue been raised, the judge could have returned the jury to its room to declare what, if any, distinction they chose to make between the appellants as to damages. The possibility of a combined verdict did not come as a shock to counsel or to the judge, all of whom expressed confused concern over the damage instructions. After his general instructions, the judge added the following:

“THE COURT: Members of the jury, as you know we have just gone over exceptions and suggestions for the Court’s instructions. But receiving a note from the clerk I may not have made myself clear on one thing. I will give you these additional instructions which are binding upon you which I will repeat.
If you find for the defendants, of course that is the end of the case.
You consider the malicious prosecution in the first count as against both defendants, and you consider the libel and slander and defamation as to the defendant Hall alone. But if you come up with damages, in assessing damages, the counts are consolidated. For instance, if you should find against the defendant Hall alone you would only find one figure of damages as compensatory and if you should allow exemplary or punitive, one figure for that. It would be determined as to whether you will have all of this against the defendant Hall or against both the defendant Hall and defendant Picone. But you are not to come up with separate ones on the count of malicious prosecution and separate ones on the libel and slander and defamation. If the plaintiff sustains the burden as to the first count or as to the third count, damages could be assessed on either or both of those, but not in but one figure.”

After considerable discussion at the bench, appellants expressly declined to register an objection to the damage instructions.

“(Whereupon, counsel approached the bench and the following proceedings were had out of hearing of the jury:)
THE COURT: Frankly I think that is as far as I could go. I don’t think I ought to get into the area if they decide to hold both of them in they find a different amount against Mrs. Hall or different amount — do you agree?
MR. SHEPHERD: This is confusing.
THE COURT: It is confusing.
MR. DIGMAN: I would merely suggest that perhaps the Court should advise that a verdict, if they find that the plaintiff is entitled to a verdict against both defendants that they must render a verdict individually against both defendants but only in one amount. Even though they may find Mrs. Hall, if they find Mrs. Hall —
THE COURT: If they hold Mrs. Picone in she has to be held in for the full amount. Isn’t that the simplest way?
MR. DIGMAN: Yes.
MR. SHEPHERD: I don’t think that is proper, though.
The problem is, just as an example, suppose they felt that the defendant Hall acted wrongly and should be punished and at the same time felt that the defendant Picone shouldn’t be.
THE COURT: That is on the question of punitive damages.
MR. DIGMAN: I think what Mr. Shepherd is saying is that suppose they hold Mrs. Hall only for both punitive and compensatory, but only on compensatory on behalf of Mrs. Picone they would have to be separate verdicts. Isn’t that what you are saying?
MR. SHEPHERD: I would think so. Won’t they have to be separated verdicts in that instance? If they felt that Mrs. Picone should not be punished because her conduct wasn’t outrageous. That is a hypothetical, but you know they could, it is conceivable that they might think that. They might think that she should be held in for compensatory but they don’t think she did anything outrageous.
THE COURT: Which she would have to do to have punitive.
MR. SHEPHERD: Which she would have to do in order to be held legally liable for punitive damages.
THE COURT: I have already told them, I thought, that they can find on the compensatory damages against either or both or one or the other. Both or one of the two on the compensatory, and the same way with the punitive.
MR. SHEPHERD: All right.
THE COURT: They would have to indicate which defendant.
MR. SHEPHERD: I am willing to let the matter drop at this point. I am not sure it could get cleared up.
THE COURT: I would think so. Do you agree?
MR. DIGMAN: Yes.
(Whereupon, counsel returned to the trial tables and the following proceedings were had in open court in the hearing of the jury:)”

We think appellants’ waiver reflected a tactical decision to take their chances, because they were at a loss as to what course to follow in recommending an instruction or objecting to that which was given.

The confusion could have been avoided by submitting to the jury specific issues to which they had to respond and, depending upon their answers, an apportionment of the damages assessed could have been made. Failing that, when the jury rendered its verdict, had the question been raised the court could even then have required an explanation of whether the jury considered all the circumstances surrounding the injury to be a single incident for which both appellants were jointly responsible despite the legal fiction of separate labels for separate acts, or whether they intended that the appellants should bear responsibility disproportionately. Appellants’ express assent that the matter was to be dropped without registering an objection or requesting an instruction clearly waives their right to now object. Md. Rule 554 d. When the jury complied with the questionable instruction, appellants’ subsequent silence at a time when the defect could have been cured precludes their present complaint.

Judgment affirmed.

Costs to be paid by appellants.

      . Although Lewis and Hopkins are slander cases, the expressions of the law of agency would apply equally in malicious .prosecution. For the principle that the burden of showing that Hall was not engaged in the course of her employment, see also Lewis v. Accelerated Express, 219 Md. 252, 256; Jones v. Sherwood Distilling Co., 150 Md. 24, 32; Newton v. Spence, 20 Md. App. 126, 138-139.

      » The specific page reference provided was unrelated to the subject for which it was cited.

      . Although he used the word “libel” along with “slander and defamation” when alluding to Count III throughout the instructions.

      . See Cheek, supra, 28 Md. App. at 43-45 re Apportionment of Punitive Damages.