author: Melvin, J.,

text:
    EDWIN D. BELL et ux. v. JAMES H. MYERS et ux.
    [No. 59,
    September Term, 1975.]

      Decided October 7, 1975.

      The cause was argued before Menchine, Lowe and Melvin, JJ.

      Charles W. Ayres, Jr., for appellants.

      Frank C. Serio for appellees.
   Melvin, J.,

delivered the opinion of the Court.

The question presented in this appeal is whether the appellees, Mr. and Mrs. James H. Myers, or the appellants, Mr. and Mrs. Edwin H. Bell, have legal title to eleven numbered lots in Block 2, as shown on a 1908 plat of “Arundel Terrace”, a subdivision in Anne Arundel County. The record indicates the plat was recorded among the plat records of the county at least as early as 1911. The lots in dispute were originally part of a 130 acre tract. Internal streets shown on the plat of the subdivision have never been laid out on the land and the lots have been wooded and unoccupied for many years.

On March 22, 1973, the appellees filed a Bill of Complaint for Declaratory Decree in the Circuit Court for Anne Arundel County seeking a decree declaring them to have fee simple title to the lots, “clear, unencumbered, and free of any and all right, title, interest, claim and/or demand in and/or of any other person, real or corporate”. Appellees base their prayer for relief on what they allege is an unbroken chain of title beginning in 1908 and ending with a recorded deed to them dated June 14, 1961, from Helen I. Wheat, widow.

Appellants’ answer to the bill of complaint, filed on May 22, 1973, denied the validity of appellees’ title and alleged title in themselves by virtue of a “clear, unencumbered, and absolute” chain of title beginning with a tax sale in 1915 and ending with a recorded deed to them dated February 19, 1957, from Rosa H. Johnson, widow, the sole heir at law of Margaret E. Hagin, who died intestate on August 29,1954.

The narrow issue in the case is the effect of the 1915 tax sale upon the otherwise good title of the appellees.

The recorded deed, dated August 3, 1926, that emanated from the tax sale was from “Joshua S. Linthicum, late County Treasurer of Anne Arundel County” and the County Commissioners of Anne Arundel County, “Grantors”, to “Margaret Hagen, Grantee”. It conveyed to Margaret Hagen, “her heirs and assigns, all of the said Grantors’ respective right, title, interest and estate in and to” seventeen numbered lots, including the eleven in dispute, in Block 2 on the plat of “Arundel Terrace”. The deed contained the following recitals:

“WHEREAS, default having been made in the payment of State, County and School taxes due and owing on the property hereinafter mentioned for the year nineteen hundred and eleven, and assessed to George J. Loos and Mary C. Loos, his wife, and the said Joshua S. Linthicum, late Treasurer and Collector of State, County and School taxes, under the provisions of the laws of the State of Maryland, and in compliance with the duties thereof imposed upon him, having first complied with all the provisions of the law in relation thereto, proceeded to, and did sell the hereinafter mentioned and described property to enforce the payment of said taxes so in default; and
WHEREAS, on the fifth day of February, 1915, the said Joshua S. Linthicum, County Treasurer as aforesaid, sold said property hereinafter described, at public sale to the said County Commissioners of Anne Arundel County, Maryland, at and for the sum of Twenty-eight Dollars ($28.00) it being then and there the highest offer therefor; and
WHEREAS, the said sale was duly reported to the Circuit Court for Anne Arundel County and the proceedings having been found regular and the provisions of the law complied with, an Order Nisi was duly passed therein; and
WHEREAS, after the publication of said Order Nisi, as required by law, the said sale was finally ratified and confirmed by said Court on the third day of April, 1924; but the said party of the second part has never received from the said party of the first part a deed conveying title to the hereinafter described property; and
WHEREAS, the said party of the second part subsequently sold the hereinafter described property to the said Margaret Hagen at and for the sum of One Hundred Dollars ($100.00), the receipt whereof is hereby acknowledged.” (Emphasis added).

The appellees do not dispute any of the facts set forth in the above quoted recitals. In other words they concede that the lots in dispute were indeed purportedly sold for non-payment of taxes prior to the date of their own deed- for those same lots. This is therefore not a case where we are called upon to examine the correctness of the procedures followed by the County Treasurer in effecting the sale. They vigorously assert, however, that no interest in the lots passed to the County Commissioners asa result of the sale.

The appellees called as their only witness, Lynn R. Kromminga, Esquire, an expert title examiner and member of the bar. After establishing appellees’ chain of title- to- the lots in question, he further testified that although he had examined “the grantee index on George and Mary Loos from 1839- to 1924”' he found “no- record of any conveyances to them whatsoever . . . from any person whatsoever”. The effect of his. testimony was that, at the time of the 19-15 tax sale the appellees’' predecessors in title were the record owners of the lots and that George- and Mary Loos, to whom the property was assessed, had no- record title- or interest therein which could- be sold. From- this- premise- appellees insist that the County Commissioners, acquired no interest in the lots and could convey none. Therefore; they argue, the conveyance from the County Commissioners, to- Margaret Hagen “was a conveyance of nothing”. The- chancellor below agreed with this argument and- declared legal' ti-tl'e to be vested in the appellees, holding: that the appellants “can claim no right stemming from the original tax sale since the court in the inception of . . . [their] chain of title lacked jurisdiction to ratify the sale, even assuming it to have been ratified”. We disagree and shall reverse the judgment below.

The crux of the chancellor’s holding is that the purchaser at a tax sale acquires no better title than was held by the person assessed. This is indeed the law in some jurisdictions but, unfortunately for the appellees, it is not the law in Maryland. In 75 A.L.R. 416, at 417, the commentator states “There are two opposing theories as to the effect of a tax sale and the nature or quantum of estate acquired by the purchaser”. One theory is that pronounced by the chancellor. The other theory, espoused by decisions of the Court of Appeals, is that:

. . [I]f the tax deed and the proceedings upon which it is based are valid, it clothes the purchaser not merely with the title of the person who was assessed with the taxes, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles, interests, and encumbrances of private persons, and all equities arising out of the same”. 75 A.L.R. 416, 418. (Emphasis supplied).

In Wagner v. Goodrich, 148 Md. 318 (1925), the contract purchaser of land in Anne Arundel County refused to consummate the sale on the ground, inter alia, that the seller’s title was not good and marketable because it stemmed from a tax sale in which the property had been sold at a time when it was assessed to owners holding it under an unrecorded deed. In upholding the trial court’s decree for specific performance, the Court of Appeals said, at 320:

“The treasurer of Anne Arundel County is the ‘collector of all state taxes and all county taxes, for whatsoever purpose, which shall be levied or assessed during his term of office . . . with full power to enforce the payment of the. same by sale or otherwise, and to convey title to any real or personal property duly sold by him, for the payment of state and county taxes, according to law . . .’ (Acts of 1894, ch. 615; 1924, ch. 134; Code Pub. Loc. Laws, art. 2, sec. 222.)” (Emphasis Added).

The Court further said in Wagner, at 322: “The fact that the property was assessed to owners who were holding it under an unrecorded deed is not sufficient ground upon which to determine the title derived under the tax sale to be unmarketable”. After noting there was no suggestion that the land was not exclusively owned by the persons in whose names it was assessed, as recited in a confirmatory deed to one who acquired the land subsequently to the tax sale proceedings, the Court held:

“. . . But apart from, the assurance afforded by the confirmatory deed, we think the title derived from the ratified tax sale is one which the appellant may safely accept. It is a title which includes not merely the interest of the persons to whom the property had been assessed for the taxes on account of which it was sold, but as the sale appears to have been valid, the grantee in the tax deed became invested with ‘a new and complete title in the land, under an independent grant from the sovereign authority.’ Hefner v. North Western Ins. Co.; 123 U. S. 751; McMahon v. Crean, supra; Hill v. Williams, 104 Md. 604; Textor v. Shipley, 86 Md. 424.” (Emphasis supplied).

In Winter v. O’Neill, 155 Md. 624 (1928), the Court again upheld a decree for specific performance of an agreement to purchase land from a seller who had acquired title from one who purchased at a tax sale. The refusal to perform was on the ground that part of the property sold for taxes was not owned or leased by the person to whom it was assessed. The Court, speaking through Judge Digges, said, at 631:

“The title derived from a tax sale is statutory, and it being in derogation of a common right, all of the requirements as set out in the statute must be complied with, in order to acquire a good title from such a sale; yet if the tax deed and the proceedings upon which it is based are valid, then from the time of its delivery it clothes the purchaser not merely with the title of the person who had been assessed for the taxes and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority; which bars or extinguishes all prior titles and encumbrances of private persons, and all equities arising out of them. Textor v. Shipley, 86 Md. 434; Hefner v. Northwestern Ins. Co., 123 U. S. 751; McMahon v. Crean, 109 Md. 652; Hill v. Williams, 104 Md. 604; Wagner v. Goodrich, 148 Md. 318. It requires no argument to demonstrate that, when a governmental agency is empowered to levy taxes for the purpose of producing revenue for the support of the government, it is necessary that a method be provided by which the payment thereof may be enforced. When this method is sale at public auction to the highest bidder, it is essential, in order that there may be bidders at such sale, that the purchaser’s title be protected, in cases where the statutory essentials of the sale are substantially complied with; otherwise the collection of taxes would be seriously impaired. In Hill v. Williams, supra, it is said: ‘It is not compatible with public convenience and the prompt collection of revenue for the State to trace out all the subdivided or qualified interests that may be held in real estate, and seek to hold the various owners responsible. Its policy is to assess the fee simple value of the land to the holder of the possession, where its real owner is not apparent or accessible, leaving the parties interested to adjust the proportions of liability between themselves.’ ”

Section 99A of Article 81 (Md. Code, 1975 Repl. Vol.) provides:

“When any tax sale made prior to January 1, 1944, has been finally ratified, then no court of equity or law in this State shall on and after June 1, 1966, entertain any proceedings to set aside or modify any title to any interest obtained in such sale. (1964, ch. 182.)”

As we mentioned earlier, the appellees do not challenge the facts set forth in the recitals of the deed to Hagin, including the fact that the 1915 tax sale was “ratified and confirmed” by the Circuit Court for Anne Arundel County on April 3, 1924. Their only contention concerning the sale or the effectiveness of the deed was, for the reasons argued, that the County Commissioners purchased “nothing” at the sale and could convey nothing. In view of the authorities we have cited, we hold that the County Commissioners purchased a fee simple interest in the property in question, unencumbered by any prior claims of those through whom the appellees now claim a superior title. We further hold that the same interest was vested in Margaret Hagen by virtue of the tax deed to her from the Treasurer who sold the property at tax sale, joined as a grantor therein by the County Commissioners.

Having determined the interest obtained in the tax sale, the courts are without jurisdiction to modify or set it aside (Section 99A, supra. See also Styers v. Dickey, 252 Md. 552) except where it is shown that the court ratifying the sale lacked jurisdiction, or where it is shown by clear and convincing proof that the tax sale as ratified was procured by fraud perpetrated by the purchaser. See Bowie v. Ford, 269 Md. 111 (1973). Nothing in the record before us suggests the application of either of these exceptions.

In their brief to this Court, the appellees argue that Section 99A violates the equal protection clause of the 14th Amendment of the U. S. Constitution. The record does not reflect that this issue was raised below either by the pleadings or in argument before the chancellor. We decline to consider it now. Md. Rule 108 ' “Even constitutional questions must be raised and decid •4 in the trial court”. Gibson v. State, 17 Md. App. 246, 253, and cases cited therein.

The deeds in appellants’ chain of title refer variously to “Margaret Hagen”, “Margaret Hagan”, “Margaret E. Hagin” and “Margaret Hagin”. From the recitals in these deeds it is apparent the references are to one and the same person. The expert witness for the appellees testified that beginning with the 1915 tax sale the appellants’ chain of title was “complete” with no “breaks in this chain of title all the way from 1915”. There would therefore seem no reason for the chancellor, upon remand, not to declare that by the deed from Rosa H. Johnson, widow, dated 19 February 1957, and recorded among the Land Records of Anne Arundel County in Liber G.T.C. 1105, folio 48, the appellants acquired record title to the eleven lots in dispute, free and clear of any claims of the appellees of a superior title or interest therein.

Decree reversed; case remanded for passage of decree consistent with this opinion; costs to be paid by appellees.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    WALTER C. NOOE, JR. v. MAYOR AND CITY COUNCIL OF BALTIMORE
    [No. 143,
    September Term, 1975.]

      Decided October 7, 1975.

      The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      Karl B. Brockman, with whom was Alvin Sellman on the brief, for appellant.

      Edward J. Glusing, Jr., Special Attorney, with whom were Francis B. Burch, Attorney General, J. Howard Holzer, Special Attorney, and Charles R. Goldsborough, Assistant Attorney General, on the brief, for State of Maryland as Amicus Curiae.

      Richard K. Jacobsen, Chief Assistant Solicitor for Baltimore City, with whom were Benjamin L. Brown, City Solicitor, Ambrose T. Hartman, Deputy City Solicitor, and Harry S. Swartzwelder, Jr., Associate City Solicitor, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

It has long been the policy of the General Assembly, as expressed in its legislative enactments, that an employee of the government shall not receive workmen’s compensation benefits in addition to other benefits furnished by the employer accruing by reason of an accidental injury arising out of and in the course of employment. Acts 1914, ch. 800, § 34 provided:

“Whenever and so long as by State law, City Charter or Municipal Ordinance, provision equal or better than that given under the terms of this Act is made for municipal employes injured in the course of employment such employes shall not be entitled to the benefits of this Act.”

This provision remained the same in substance until 1970. The Court of Appeals had occasion to construe the statute in Montgomery County v. Kaponin, 237 Md. 112, decided 7 December 1964. It described the statute, at 115, as providing “state, city and municipal governments with the authority to exclude themselves from carrying workmen’s compensation insurance on their employees by permitting them as an alternative to enact their own laws providing benefits for their employees equal to or greater than the benefits provided by Workmen’s Compensation if they so desired.” It found:

“Article 101, Section 33 does not provide for offsets of workmen’s compensation benefits against the benefits received from a pension fund, but is a qualification statute designed to give municipal employers an alternative to providing workmen’s compensation by enacting legislation affording to their employees benefits equal to or greater than those provided by the Workmen’s Compensation law.” Id. at 115,

It held that “the Workmen’s Compensation law intends a law by law examination and not a ease by case examination....” Id. at 115. Determining that the benefits provided by the retirement fund established by Montgomery County for its employees (Chapter 19 of the Montgomery County Code), were not equal to or greater than the provisions of the Workmen’s Compensation law, it declared that the claimant was entitled to receive benefits under both. Id. at 115. See Aravanis v. Eisenberg, 237 Md. 242, n. 1 at 251 (1965). In what was apparently a delayed reaction to the Kaponin holding, the 1970 General Assembly deleted the provision from the law. Acts 1970, ch. 741. Acts 1971, ch. 119, however, repealed ch. 741. Ch. 785, Acts 1971, was enacted. It was approved 28 May 1971, and upon the declaration that it was “an emergency measure and necessary for the immediate preservation of the public health and safety”, it took effect from the date of its passage. An erroneous reference in the Act to § 2 (a) (2) rather than § 21 (a) (2) was corrected by ch. 502, Acts 1972. Ch. 785, codified as § 33 of art. 101, includes:

“Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of employers covered under Section 21 (a) (2) of this article, the dependents and others entitled to benefits under this article as a result of the death of such employees, the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer for any benefit under this article. Should any benefits so furnished be less than those provided for in this article the employer shall be liable to furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.
The Commission shall have full power to determine whether any benefit provided by the employer is equal to or better than any benefit provided for in this article and to render an award against the employers to furnish additional benefit or benefits to make up the difference between the benefit furnished by the employers and the benefits required by this article as the case may be. This section shall also be subject to the continuing powers and jurisdiction of the Commission provided for in this article.”

Section 21 (a) (2) encompasses “The State, any agency thereof, and each county, city, town, township, incorporated village, school district, sewer district, drainage district, public or quasi-public corporation, or any other political subdivision of the State that has one or more employees subject to this act” as constituting employers subject to the Workmen’s Compensation law. Patently, ch. 785, Acts 1971, was enacted in answer to Kaponin.

As we have indicated, from the inception of the Workmen’s Compensation law, the General Assembly was concerned with, and attempted to prohibit, governmental authorities being obliged to pay benefits to an employee twice as a result of the same injury. This concern, evidenced by the provisions of § 34 of ch. 800, Acts 1914, later § 33 of art. 101, was expressed in the preamble to the Act, which after setting out the philosophy of the Workmen’s Compensation statute, continued:

“Whereas, in addition thereto, the State and its taxpayers are subjected to a heavy burden in providing care and support for such injured workmen and their dependents, which burden should, in so far as may be consistent with the rights and obligations of the people of the State, be more fairly distributed as in this Act provided;____”

When the manifest purpose of § 33 was to a large extent circumvented by the Kaponin holding, the General Assembly responded. Acts 1971, eh. 785, clearly provides for offsets of workmen’s compensation benefits against the benefits otherwise furnished by a defined employer. It is not a qualification statute such as the Court of Appeals found the former statute to be. To the extent which, by due legislative enactment, a defined employer furnishes an employee with benefits, whether as part of a pension system or otherwise, the liability or obligation of the employer for any workmen’s compensation benefit is satisfied and discharged. If the Workmen’s Compensation Commission determines that the benefits furnished by the employer are equal to or better than the workmen’s compensation benefits, then the liability or obligation of the employer under the workmen’s compensation act is fully satisfied and discharged. The offset nature of the provisions is readily apparent also from the title to the Act which declares that it is to provide that “whenever benefits are furnished by an employer, as defined, equal to or better than the benefits provided under Article 101 of the Annotated Code of Maryland, such defined employer shall be released of any obligation thereunder, but should such benefits be less than those required by the said Article 101, such defined employer shall make up the difference.”

Walter Clifford Nooe, Jr., a patrolman in the Baltimore City Police Department, was injured on 6 September 1972. The Workmen’s Compensation Commission determined that he had sustained an accidental injury arising out of and in the course of his employment and that he was temporarily totally disabled as a result thereof. Upon hearing on 10 July 1974, it found that Nooe “sustained a permanent partial disability under ‘Other Cases’ amounting to 50% industrial loss of use of his body . . ,”, but that “Benefits under Workmen’s Compensation Law are barred as the benefit ‘. . . then provided by the employer is equal to or better than any benefit furnished by the employer. * .. .” On 31 July it ordered “that the claim is barred under Article 101 Section 33; subject to the provisions of the Workmen’s Compensation Law of Maryland.” Feeling aggrieved by the order Nooe sought review in the Baltimore City Court. Code, art. 101, § 56. Upon hearing on 17 January 1975 the decision of the Workmen’s Compensation Commission was affirmed. Judgment nisi entered in favor of the employer and self-insurer for costs was made absolute on 22 January. Nooe appealed to the Court of Special Appeals of Maryland.

The “Fire and Police Employees Retirement System of the City of Baltimore” was established by ordinance of the Mayor and City Council of Baltimore. Baltimore City Code, art. 22, §§ 29-41 (1966). The Retirement System authorizes an allowance on special disability benefit. Art. 22, § 34 (f) provides:

“Upon retirement for special disability a member shall receive a special disability retirement allowance which shall consist of:
(1) an annuity which shall be the actuarial equivalent of his accumulated contributions at the time of his retirement; and
(2) a pension, in addition to the annuity, of sixty-six and two-thirds per cent of his average final compensation.”

Nooe was retired for special disability and received two sums bi-weekly from the Retirement System, $17.31 as an annuity pursuant to § 34 {f) (1) and $252.90 as a pension pursuant to § 34 (f) (2). According to the court below “It is conceded in this case that the benefits under the pension plan are greater than those required under Workmen’s Compensation ... [I]t is conceded by both sides that $252.90 is greater than the amount which would be paid to Mr. Nooe under the workmen’s compensation award if the benefits were, in fact, payable under that award.”

The question is, therefore, whether, under the circumstances, § 33 of art. 101 was applicable, so that the payment to Nooe of the pension benefits discharged in full the obligation of the Mayor and City Council of Baltimore with respect to the workmen’s compensation benefits.

We point out what is self-evident from the record before us. Within the contemplation of § 33, the Mayor and City Council of Baltimore was an employer and Nooe was its employee. Through a Retirement System duly established by the enactment of an ordinance, Nooe was furnished benefits by the Mayor and City Council of Baltimore as part of a pension system, and these benefits were furnished him because he was disabled due to an accidental injury arising out of and in the course of his employment so that ordinarily he was also entitled to workmen’s compensation benefits. Code, art. 101, § 21 (b) (4). As the pension benefits were more than the workmen’s compensation benefits, the liability and obligation of the Mayor and City Council for the workmen’s compensation benefits were satisfied and discharged, unless for other reason § 33 was not applicable.

Nooe advances such other reason. He claims that the provisions of § 33 apply only in death cases. He arrives at this construction through the phrase in the statute, “the dependents and others entitled to benefits under this article as a result of the death of such employees.” We do not agree with this interpretation.

The cardinal rule in statutory construction is to effectuate the real and actual intention of the Legislature. State v. Gibson, 4 Md. App. 236, 247-248 (1968). It is generally true that the Legislature intended to mean what is plainly expressed in the language of the statute. Slagle v. State, 243 Md. 435 (1966). But “Adherence to the meaning of words does not require or permit isolation of words from their context. . . [because] the meaning of the plainest words in a statute may be controlled by the context.” Maguire v. State, 192 Md. 615, 623 (1949). In construing a statute of doubtful meaning and application, it is proper for the courts to consider the consequences of a proposed construction, so that results that are unreasonable or inconsistent with common sense would be avoided whenever possible. Height v. State, 225 Md. 251, 259 (1961). See Kadan v. Board of Supervisors, 273 Md. 406, 415 (1974), quoting with approval Thomas v. Commissioner, 211 Md. 357, 361 (1956); Wilson v. State, 21 Md. App. 557, 567-568 (1974).

Nooe takes the phrase out of context and disregards what comes before. The statute in clear and unambiguous language deals with benefits paid (1) employees, then living, of defined employers, and (2) dependents of employees and others entitled to workmen’s compensation benefits as a result of the death of such employees. The judge below pointed out:

“ ‘If the court accepted the theory of the claimant that the amended section applies only to death cases the rights of widows and orphans of a deceased employee would be severely restricted whereas an employee who sustained relatively minor injuries resulting in a disability pension would be entitled to double benefits.’ ”

The judge did not believe that this was the intention of the Legislature. He thought that § 33 “was intended to apply to all claims under the workmen’s compensation law . . . .” He elaborated on the legislative intent: “I do not believe that it was the intention of the Legislature, that a City policeman, injured in the line of duty, should be entitled to collect both the disability benefits and the workmen’s compensation benefits. It strikes me that this would be unreasonable under the circumstances. . . .” We are in full accord with this view.

We hold, as did the Workmen’s Compensation Commission and the court below, that the payment to Nooe of the pension satisfied and discharged in full the liability or obligation of the Mayor and City Council of Baltimore for any benefit under the Workmen’s Compensation law.

Judgment affirmed; costs to be paid by appellant.

      . In the 1964 Replacement Volume of the Annotated Code of Maryland the provision appeared as a part of § 33 of article 101, as follows:
      “Whenever and so long as by State law, city charter, or municipal ordinance, provision equal to or better than that given under the terms of this article is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this article.”
      Hereinafter, unless otherwise indicated, reference to Code, art. 101, § 33 encompasses only those parts of the section with which we are here concerned.

      . Nooe was injured when the motorcycle he was driving collided with another vehicle. He suffered injuries to his left hand, right ankle, pelvis, lower back, left foot and left ankle.

       Patently intended to mean available under the Workmen’s Compensation Act.

      . The court below, and we think correctly, determined that the annuity paid Nooe was not within the contemplation of § 33. As the actuarial equivalent of Nooe’s accumulated contributions at .the time of his retirement, it was not a “benefit furnished by the employer.”


author: Lowe, J.,

text:
    ROBERT S. CHENAULT v. DIRECTOR, PATUXENT INSTITUTION
    [App. No. 51,
    September Term, 1975.]

      Decided October 10, 1975.

    Before Orto, C. J., and Morton and Lowe, JJ.
   Lowe, J.,

delivered the opinion of the Court.

Robert S. Chenault has applied to this Court for leave to appeal the judgment of Judge Marvin J. Land of the Circuit Court for Baltimore County, who redetermined that applicant was still a defective delinquent pursuant to Md. Code, Art. 3 IB, Sec. 10.

On August 7, 1974 applicant failed to return from conditional parole. On December 12, 1974 he was arrested in Montgomery County and held in its Detention Center pending disposition of charges against him. Patuxent officials were duly notified. While awaiting trial in Montgomery County, he petitioned the Circuit Court for Baltimore County on January 28, 1975 for redetermination of his defective delinquency.

Judge Kenneth C. Proctor responded by appointing an attorney to represent applicant in the redetermination hearing and advised applicant that his counsel would ask Patuxent Institution to have applicant returned for examination pursuant to the hearing.

A series of correspondence between applicant and court ensued, substantially to the effect that applicant opposed returning to Patuxent for evaluation because of some real or imagined threat to his life. He was advised that such evaluation and examination was necessary for the redetermination. Petition for applicant’s return to Patuxent for the redetermination evaluation was filed by the State’s Attorney on May 13, 1975 and order signed by Judge Land the following day. The evaluation was made and report by interval note filed with the court on June 5, 1975 at the hearing on redetermination.

Applicant first contends that because the Patuxent officials required his physical presence for the diagnostic staffing and evaluation report he was “caused a wilful and unreasonable delay in [his] hearing date.” Such contention is spurious. Any delay was the direct result of his escape and subsequent detention by Montgomery County officials pending unrelated charges, coupled with his own opposition to efforts to return him to Patuxent for reevaluation. Furthermore, the constitutional right to a speedy trial does not apply to defective delinquency hearings, which are not criminal in nature. McCloskey v. Director, 230 Md. 635.

The second issue is equally without merit. Applicant contends that

“. .. in order to resolve the matter of getting applicant to Patuxent Institution, his counsel and an assistant State’s Attorney for Baltimore County had to refer the matter to the Judge of the Circuit Court for Baltimore County assigned to hear said matters, who, after a chamber’s meeting with said attorneys, and during which it became necessary to disclose to his detriment, the reasons why applicant was at the Montgomery County Detention Center. . . . This procedure which was necessitated by the inactivity of Patuxent Institution officials thus tainted, unfairly, the hearing that applicant was entitled to have and weakened or destroyed his defenses therein.”

Presumably the in-chambers hearing resulted from the State’s Attorney’s petition to transfer applicant, over his protest, to Patuxent for the evaluation. We can see nothing, and are informed of nothing by applicant, to indicate prejudice from his having imputed the knowledge of his detention for unrelated matters in Montgomery County to the judge who decided the petition to transfer applicant for evaluation. Such bald allegation with no specificity whatsoever provides no ground on which to grant an application for leave to appeal. Shields v. Director, 11 Md. App. 347, 349.

The final allegation of error provides cause for greater concern. Over applicant’s objection, an Interval Note prepared at Patuxent Institute was admitted into evidence. The note, made pursuant to the reevaluation, contained a brief summary of applicant’s history which had been fully set forth in the original Institutional Report supplemented by an Interval Note prepared for an earlier redetermination hearing. Following that summary was a “bring-to-date” of applicant’s activities which included the following:

“Then on July 1, 1974 he was reparoled to the Half-Way House where he again violated the terms and conditions of his parole and on August 8, 1974 he escaped from supervision and a retake warrant was issued. The patient was apprehended on September 13, 1974 [sic] when he was arrested in Montgomery County on charges of Burglary and Concealed Weapon (knives [sic] and a loaded tear pistol), and he is presently awaiting trial for these charges. ” [Emphasis added].

Because the “Interval Note from the Patuxent Institution which contained references to his arrest in Montgomery County was admitted into evidence . . applicant complains that he was “denied due process.” He would have us compel suppression of the Interval Note containing the offensive reference. Although suppression of the entire note seems extreme, on July 28, 1975, less than one week after applicant’s application was filed, the Court reported the opinion by Judge Gilbert of Rocky Floyd Arbaugh v. Director, Patuxent Institution, 27 Md. App. 662. Judge Gilbert said:

“We think that evidence relative to the fact that there is a pending criminal charge should be deleted from the record before it is offered into evidence. The pendency of a criminal charge may tend to prejudice the jury. Institutional misconduct, which is admissible, may be viewed in one light, but indictments and other pending criminal charges are usually seen in a more ominous perspective.”

In short, we held that evidence of an arrest (as distinguished from actual acts of misconduct) is not relevant, 3A Wigmore on Evidence, Sec. 980 a, and if admitted is not harmless error because of its potentially prejudicial effect upon a jury.

We have noted, however, that applicant was tried by the court without the aid of a jury thus substantially lessening the probability of prejudice. The Court of Appeals has clearly recognized that the attributes peculiar to the judiciary compel the trial judge

“. . . by his legal training, traditional approach to problems, and the very state of the art of his profession, . . . [to] early learn to perceive, distinguish and interpret the nuances of the law which are its “warp and woof.” State v. Hutchinson, 260 Md. 227, 233.

Writing for the Court, Judge Finan made it clear that:

“. . . we have consistently reposed our confidence in a trial judge’s ability to rule on questions of admissibility of evidence and to then assume the role of trier of fact without having carried over to his factual deliberations a prejudice on the matters contained in the evidence which he may have excluded.” Id. at 236. Accord, State v. Babb, 258 Md. 547.

While such was the primary teaching of Hutchinson, another message is discernible, i.e., there should be some indication in the record that the trial judge perceived the inadmissible matter and disregarded it. At the very least, there must not be any reviewable indication that the conviction (or determination of defective delinquency, as in Arbaugh, supra,) was based, in whole or in part, on the legally inadmissible evidence. Judge Finan said:

“In the case at bar the trial judge affirmatively stated that he rejected the inculpatory statement, noting that ‘[I] completely disregard said statement and give no weight to it in reaching a verdict.’ This is, therefore, not a- ease where we are left without knowledge as to whether the conviction was based, in whole or in part, on a legally inadmissible confession; Judge Cole stated flatly that he was not basing his verdict on the statement.” State v. Hutchinson, 260 Md. at 234.

It is apparent here that the trial judge gave considerable weight to the unproven facts underlying the arrest. His opinion contained intermittent references to the circumstances under which applicant was arrested and recited the facts underlying the crimes with which applicant had been charged.

“I don’t know what will happen in the case that is coming up in Montgomery County. That may be dismissed, he may get a suspended sentence, if he is found guilty. I have no control over that. I have no control over where he should go, or how long he should stay.
He knows he is supposed to be under their jurisdiction, but he does not comply with the rules, and for almost four months he’s on the loose, until he’s arrested exercising his not criminal misconduct but terribly poor judgment by getting into an elementary school at 3:30 in the morning on a rainy evening, and I am not finding him guilty of that charge, but if there was ever an example of not finding his way in society, it’s being picked up at 3:30 in the morning inside an elementary school with a tear gas gun in your possession, which involves three different violations of the criminal law.”

Neither the avoidance of the use of a criminatory predicate, nor the expressed reluctance to consider applicant as convicted of the untried charges pending, alter the judge’s apparent assumption of the truth of the facts alleged, which if proven, provided the foundation for a conviction of the charges pending. Here we are not merely “. . . left without knowledge as to whether the conviction was based, in whole or in part, on legally inadmissible [evidence] . . we are told by the judge of his substantial reliance thereon. We leave for another day what was intended by the Court of Appeals when we are “. . . left without knowledge. . .

Application for leave to appeal granted.

Judgment reversed.

Case remanded for a new trial.

      . The record indicates that the arrest in Montgomery County was December 13,1974 rather than September.

      . The trial judge denied a motion to suppress the offensive reference to applicant’s arrest and denied an objection to the admissibility of the Interval Note containing that reference.


author: Powers, J.,

text:
    W. LESTER DAVIS et al. v. CLAIBORNE E. CORBIN
    [No. 906,
    September Term, 1974.]

      Decided October 31, 1975.

      The cause was argued before Powers, Gilbert and Davidson, JJ.

      Patrick A. O’Doherty, with whom was Hamilton O’Dunne on the brief, for appellants.

      George W. White, Jr., and Philip 0. Foard, with whom were White, Mindel, Clarke &Hill on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Claiborne E. Corbin, appellee here, filed a bill of complaint in the Circuit Court for Harford County, on 29 January 1973, against two individual defendants and six corporate defendants. The suit sought to establish that Corbin was the owner of a one-half interest in Spartan Concrete Corporation, one of the corporations, and to require the other corporate defendants and the individual defendants to account to Spartan for business, money, and other assets of Spartan which Corbin alleged had been wrongfully diverted from it by the other defendants.

The individual defendants were W. Lester Davis and his wife, Virginia R. Davis. The corporate defendants in addition to Spartan Concrete Corporation were Aberdeen Sand & Gravel Co., Inc., t/a Bel Air Concrete Company, The Aberdeen Concrete Company, The Joppa Concrete Company, Davis Concrete Company, and D. and L. Products Corporation.

An answer to the complaint was filed on behalf of all defendants. The significant allegations of the bill of complaint were denied. In addition, the answer contained seven affirmative defenses. Briefly stated, they were laches, statute of limitations, denial of partnership, denial of execution of relevant written documents, general issue plea in contract, general issue plea in tort, and an assertion that the complaint failed to state a cause of action for which equitable relief could be granted, which we take to be in the nature of a demurrer.

The case was tried in the Circuit Court for Harford County before Judge Albert P. Close, on 20, 21, 22, 25 and 26 February 1974. At the conclusion of the trial the case was taken under advisement. In a memorandum opinion filed on 19 September 1974, Judge Close ruled admissible the testimony of Corbin concerning his transaction with Davis, and ruled in favor of Corbin on the substantive issues in the case. A decree signed on 14 November, filed on 15 November 1974 granted the relief prayed in the bill of complaint. The defendants noted this appeal from that decree.

In their brief here the appellants argue two points. One is the admissibility of certain testimony given by Corbin, and the other is whether laches by Corbin in bringing this suit bars him from asserting his claim. Appellants word the questions presented in their brief in this way:

“1. Was the Defendant incompetent so as to render the testimony of the Plaintiff inadmissible concerning transactions with him?
“2. Did the Plaintiff -act with the required legal diligence in pursuing the claim of ownership in Spartan which he asserts in this proceeding?”

In his brief, Corbin, as appellee, in effect puts the same questions, but does so in terms of the facts upon which the chancellor’s rulings were based rather than upon the rulings themselves. Corbin presents the questions:

“1. Was the Court below clearly erroneous in finding as a fact, that the Defendant, Davis, was not mentally disabled under the provisions of the Dead Man’s Statute?
“2. Was the Court below as the trier of fact clearly erroneous in finding that Corbin did not have actual knowledge prior to March of 1972 of Davis’ intention to deny his 50% ownership of Spartan; and that there were no facts or occurrences to put a person of ordinary prudence and diligence on notice of any such intention particularly where as here Davis actively concealed and disavowed any such intention by affirming their relationship and acknowledging his obligation to Corbin upon every inquiry?”

In a reply brief appellants set out in full the fourteen page memorandum opinion filed by the chancellor, and then pose three questions. Two are substantially the same as those argued in their initial brief. The additional question is:

“1. Was the Court below in error in holding that the parties were joint venturers or partners?”

The transcript of the trial before Judge Close covers 960 typewritten pages, recording the testimony of 23 witnesses and the introduction of some 50 exhibits. We feel, however, that the facts we summarize below will be sufficient for the purpose of the issues involved in this appeal.

In 1962 Davis was engaged in rather extensive business enterprises in Harford and Cecil Counties, including the operation of plants from which he sold mixed concrete. At that time the Spartan Concrete Corporation, located in Bel Air, was owned and operated by members of the Sparr family. Some members of the family had conversations with Corbin, looking to the possible purchase of the business by him. Corbin spoke to Davis about buying Spartan, but at that time Davis said he was not interested. Later the two discussed it again, after the Sparrs had also talked to Davis. There was evidence that Davis and Corbin agreed to acquire the Spartan Corporation on a fifty-fifty basis.

On 3 August 1962 there was a meeting, attended by Davis, Corbin, several members of the Sparr family, and an attorney whom Davis had asked to attend. At Davis’s direction the attorney had prepared an agreement between the Sparrs and Davis for the sale. The sale was consummated on the same day. The price was $96,000, plus the assumption of obligations of Spartan. Three notes, two for $40,000 each and one for $16,000, representing loans from a local bank, provided the funds with which the purchase was accomplished. The two $40,000 notes were signed “Spartan Concrete Co., Inc., T/A Davis & Corbin Concrete Co., W. Lester Davis, Pres.”. Under that signature was the personal signature, of Claiborne E. Corbin. On the back, as an endorser, was the signature W. Lester Davis. The third note for $16,000 was not signed in any business name but was signed only with the individual signatures, W. Lester Davis and Claiborne E. Corbin. Each of the several members of the Sparr family who held stock in Spartan turned in his certificates with the assignment executed and received a check for his share of the agreed price.

In evidence was a single sheet of paper upon which are recorded the minutes of two separate corporate meetings, both dated August 3, 1962. The first is designated as a stockholders’ meeting of Spartan. Those minutes recorded that the stockholders elected as Directors for the ensuing year, W. Lester Davis, Virginia Davis, C. E. Corbin, and Marie Corbin. The minutes further record that the President announced that he and other present officers were disposing of the stock and that all of the present officers tendered their resignations, effective immediately.

The lower half of the same sheet records the minutes of a meeting of Directors of Spartan on the same day. Those minutes state that following the adjournment of the stockholders’ meeting the new Directors, being also all of the outstanding stockholders, having purchased the outstanding stock of Leroy A. Sparr and other members of his family, organized by electing the following new officers: President, W. Lester Davis; Vice President, C. E. Corbin; Treasurer, Virginia Davis, and Secretary, Marie Corbin.

A bank account was opened and maintained by the business in the name of Davis & Corbin Concrete Co., W. Lester Davis or Claiborne Corbin. In many ways shown by the evidence the business was openly conducted as Davis & Corbin Concrete Company, sometimes as Spartan Concrete Corporation, trading as Davis & Corbin Concrete Co. The October 1973 issue of the telephone directory carried an advertisement in the yellow pages by Spartan Concrete Corp., trading as Davis & Corbin. Corbin received a weekly paycheck from the business, by check drawn on an account carried under the name of Davis & Corbin Concrete Co. One of such payroll checks, dated 1 July 1972, was placed in evidence.

There was also evidence that in September, 1963, Mr. and Mrs. Davis and the family of one William M. Lindenstruth agreed to combine all of the concrete mixing plants they owned by transferring all of the stock of the respective corporations to a holding corporation, to be chartered by the parties, in which each family was to have a 50% stock interest. It appears that the operations were promptly combined in fact, although the new corporation, D. and L. Products Corporation, was not actually formed until 1965. Some, and perhaps all, of the securities of the other corporations were assigned to D. and L. Products in 1967, dated back to 1965. By a separate assignment dated “as of March 17, 1965” Davis assigned what he described as “all of the Capital Stock standing in my name on the books of said Corporation [Spartan]” to D. and L. Products Corporation. There was no evidence that the Spartan certificates turned in by the Sparr family in August, 1962, have ever been transferred on any corporate records maintained by Spartan.

Davis managed the combined operation of the so-called Davis companies and Lindenstruth companies from the time of the 1963 agreement until 1967, when Mr. and Mrs. Davis acquired the stock of the Lindenstruth family in D. and L. Products Corporation. The following year after The Aberdeen Sand and Gravel Co., Inc., which operated a concrete mixing plant in Bel Air under the name of Bel Air Concrete Company, came under the management of Davis, Davis moved its operation to Spartan’s location, which adjoined.

Corbin from time to time complained to Davis that business originated by Spartan was actually being diverted to and billed by Bel Air, and that Bel Air was filling its orders by using materials paid for and stockpiled by Spartan. There was evidence that on several occasions when the subject was brought up Davis agreed that he owed Corbin a lot of money, and promised that the matter would be straightened out. Such evidence, if true, would support not only the claim that assets of Spartan had been diverted to a company in which Corbin had no interest, but would show that Davis recognized Corbin’s right, as part owner of Spartan, to raise the question.

A deed in evidence shows that on 1 May 1967 Davis and Corbin, as tenants in common, acquired four acres of land in Harford County. Corbin testified that their purpose was eventually to relocate Spartan’s concrete mixing plant, and that each paid one half of the purchase price of $10,000. Another exhibit shows that an attorney working on an estate plan for Corbin wrote to Davis’s accounting firm in 1969 asking for details of Corbin’s 50% interest in Spartan Concrete Company.

Corbin testified that he talked to Davis several times about Spartan. Davis said that he would take care of it, that “one of these days we will straighten out.” Corbin knew that Davis had other problems, with payments to the Lindenstruths, and with Internal Revenue. Corbin testified:

“I said, Les, don’t worry about me. I said, I am not going to put any pressure or anything like that. You go ahead. You’ve got troubles. We will straighten it up. He said, that is fine. We will do that. That is the way we left and I was happy and I think it was in — I know I heard several remarks saying that I called up all the time. Well, I did, I might have called up but he called me first. He said in 19, let me think now, about 1971 in about December, it was really a break of the day, he told me, called me on the phone, said, Bud, I know I owe you a lot of money, and he said, I am going to straighten up with you. I said, well, Les, that is fine. I was hoping we could really straighten up and have no troubles. He said, well, he says, we will do that * * *.”

Corbin said Davis was to let him know when, and it went on about three months. He testified:

“I think it was April or March of ’72, I called Les up. I said, Les, I said, when are we going to get straightened out? I suggested in December and it is March now. When are we — going into another season — are we going to straighten out? He said, straighten out what? I said, the business. He said, you don’t own no business. I said, you have to be kidding. He said, no. I’m not kidding. If you think I am kidding, send your lawyer over and find out. I said, you are serious, aren’t you? He said, you’re damn right I’m serious. I said, okay, I will do just what you said.”

In a letter dated 11 April 1972 Corbin’s attorney sent to Davis’s attorney certain financial information and copies of supporting papers. Davis’s attorney wrote to Davis on 13 April 1972, sending a copy of what he had received. He said:

“This report should aid Mr. Flom in setting up a proper account, which apparently your previous auditor had not done.
“You will also note that Mr. Corbin is ready to sever the relationship, which I presume is being indicated by Mr. Mittelman that you either offer to buy or sell.”

On 23 May 1972 Davis’s attorney wrote Corbin’s attorney, making an offer for Corbin’s interest. The letter was objected to because it disclosed an offer to compromise. In a further letter, 26 September 1972, Davis’s counsel confirmed a telephone conversation with Corbin’s counsel in which he had advised, “that we have now found the records in connection with Spartan Company, to show that Mr. Corbin is the vice-president of the Company and his wife is the secretary, which changes the situation as we all had thought existed prior to the search of the records.” The letter suggested a willingness to discuss the matter further after completion of an audit of Corbin’s records.

We do not look upon any of the evidence we have referred to showing what happened in 1972 as supporting, even inferentially, Corbin’s substantive claim. We confine our consideration of that evidence to its bearing on the defense of laches raised by Davis.

Admissibility of Corbin’s Testimony Under the Dead Man’s Statute

At the outset of the trial counsel for Davis sought a ruling that Corbin would not be permitted to testify concerning any transaction with Davis because it was claimed that Davis was, at the time of trial, incompetent. The law of evidence which was sought to be invoked was, of course, the so-called Dead Man’s Statute. The statute in effect at the time is found in Code, Courts Art., § 9-116, which says, in part:

“A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, * * * >f

Concerning changes in wording from the statute as it existed prior to 1 January 1974, the Revisor’s Note explains:

“While modernizing the language and simplifying the sentence structure for clarification purposes, every effort is made to retain the exact purpose of the statute as it is construed and as it is presently written.”

For comparison we set out a part of Code, Art. 35, § 3, which was in effect from 1902 until 1 January 1974:

“In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, and in proceedings by or against persons incompetent to testify by reason of mental disability, no party to the cause shall be allowed to testify as to any transaction had with, or statement made by the testator, intestate ancestor or party so incompetent to testify * * * .”

After consideration of the positions of the parties on the question of admissibility of Corbin’s testimony, the chancellor reserved his decision, and stated that he was going to hear the case as though the issue were not before him. In his subsequent memorandum, the chancellor ruled that Corbin’s testimony concerning transactions with Davis was admissible.

No appellate decision in Maryland has ever construed that part of the dead man’s statute relating to incompetence of a living party. It is necessary that we do so now. Initially, we hold that the present phrase, “incompetent person”, was intended to have and does have the same meaning as the former phrase, “person incompetent to testify by reason of mental disability”.

In his memorandum opinion Judge Close summarized the evidence on the question of whether Davis was incompetent to testify by reason of mental disability as follows:

“Virginia R. Davis, Defendant and wife of W. Lester Davis, testified that he is presently paralyzed, his speech is very bad and he cannot communicate. His first heart attack occurred in October of 1968 and a second shortly thereafter. In the spring of 1971, he suffered a subarachnoid hemorrhage or aneurysm which occasioned a loss of memory. He suffered a second stroke in November of 1972 and the last to date in February of 1974. Dr. John Russell Davis, his personal physician testified essentially to the same chronology of medical accidents suffered by W. Lester Davis and stated that it was his opinion that his patient was incompetent to ‘handle or transact affairs’. His memory was impaired prior to and his condition has worsened since November of 1972 at which time he doubted that he would have been competent to testify.
“Plaintiff produced Leonard J. Gallant, a licensed physician trained in medicine, neurology, psychoanalysis and psychiatry, specializing in psychi-. atry who felt that W. Lester Davis was competent to handle his own affairs as one who has a mild cardiovascular disease that seems well compensated for at this time, admitting that he may have had periods of lack of memory of short duration, interspersed with periods of good memory and competency. Plaintiff also introduced evidence to show that since 1971 W. Lester Davis had continued to pursue a fairly active business life.
“R. Raymond Mitchell, President of the Aberdeen National Bank, testified as to Davis’ activities as a Director and Chairman of the Executive Committee, James Robert Hooper testified as to negotiations concerning the rental of property in September of 1973, and T. Carroll Brown testified with regard to a winding course of financing, foreclosure bankruptcy, and purchase at foreclosure in which Davis was a constant participant and ultimate purchaser of a large quarry operation, including the executing of papers as late as January, 1974.”

The chancellor concluded with this ruling:

“In the face of the facts developed by the testimony, and the requirements of Subtitle R., Minors and Persons under Disability of the Maryland Rules of Procedure that a formal proceeding be initiated in Court by Petition of an interested person accompanied by the signed and verified certificates to two physicians in order to determine whether or not one is a disabled person who is unable to manage his personal affairs, this is clearly not a case where the protection afforded by Article 35, Section 3, [Courts Art., § 9-116] should be invoked.”

Appellants argue that the trial judge erred in holding that formal adjudication of incompetency was the sole test to determine admissibility of evidence under the statute. We do not read the ruling below as so holding. The ruling was prefaced by a reference to “the facts developed by the testimony”, as well as a reference to the lack of a formal adjudication proceeding. In any event, our inquiry looks to the result.

“Qualification or competency is largely within the discretion of the trial court,” Horsey v. State, 225 Md. 80, 82, 169 A. 2d 457 (1961). In Sun Cab Co. v. Carter, 14 Md. App. 395, 287 A. 2d 73 (1972), we said, at 407:

“In so far as the contention goes to the competency of Carter to testify, this was a matter in the discretion of the trial court. It had the opportunity to observe Carter on the stand and had knowledge of the explanations given by him. We cannot say that the receipt of his testimony was an abuse of judicial discretion.”

The discretion thus reposed in the trial judge is, of course, to be exercised by application of recognized legal principles. Those principles have been stated in several cases by the Court of Appeals. In Terry v. O’Neal, 194 Md. 680, 72 A. 2d 26 (1950), the Court said, at 688:

“Even imbeciles and lunatics have been permitted to testify where there is a showing of probable capacity. ‘A witness should not be debarred from testifying on the ground of mental incapacity unless the proof of such disqualification is clear and conclusive.’ Johnston v. Frederick, 140 Md. 272, 281, 117 A. 768; Weeks v. State, 126 Md. 223, 227, 94 A. 774; Wigmore, Evidence, 3d Ed., § 492.”

In Johnston v. Frederick, 140 Md. 272, 117 A. 768 (1922), cited in Terry v. O’Neal, supra, the Court quoted at length from Weeks v. State, 126 Md. 223, 94 A. 774 (1915). In Weeks the defendant was being tried on a charge of carnally knowing an imbecile. When the victim was called to testify, Weeks questioned her competency. In affirming the conviction of the appellant the Court of Appeals said in Weeks, at 228:

“ * * * in the case of District of Columbia v. Armes, 107 U. S. 519, the Supreme Court said: ‘The general rule, therefore, is, that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the Court, upon examination of the party himself, and any competent witness who can speak to the nature and extent of his insanity.’ In 4 Words and Phrases, 3391-3392, imbeciles are said to be persons whose mental powers and resources are limited or whose minds are weak or feeble. After an examination of her testimony and the testimony of the two physicians, we entirely agree with the conclusion of the learned Court below that, while Carrie Waring was an imbecile, she was nevertheless competent to testify to the facts as to which she was interrogated.”

The ruling by the chancellor that Davis was not incompetent and that Corbin’s testimony concerning transactions with Davis was not thereby rendered inadmissible under Courts Art. § 9-116 was a proper exercise, and was not an abuse, of the chancellor’s discretion.

The Defense of Laches

Defining laches is not as difficult as applying it. The Court of Appeals said in Parker v. Board of Election Supervisors, 230 Md. 126, 186 A. 2d 195 (1962), at 130-31:

“This Court has had occasion to deal with the question of laches many times. It is a defense in equity against stale claims, and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society. There is no inflexible rule as to what constitutes, or what does not constitute, laches; hence its existence must be determined by the facts and circumstances of each case. Brashears v. Collison, 207 Md. 339, 115 A. 2d 289. The devolution of time, alone, does not constitute laches; it is but one of the many circumstances from which a determination of what constitutes an unreasonable and unjustifiable delay may be made. In a purely equitable action, a lapse of time shorter than the period of limitations may be sufficient to invoke the doctrine; and, where the delay is of less duration than the statute of limitations, the defense of laches must include an unjustifiable delay and some prejudice to the defendant. What amounts to ‘prejudice,’ such as will bar the right to assert a claim after the passage of time, depends upon the facts and circumstances of each case, but it is generally held to be anything that places him in a less favorable position. And, since laches implies negligence in not asserting a right within a reasonable time after its discovery, a party must have had knowledge, or the means of knowledge, of the facts which created his cause of action in order for him to be guilty of laches.”

A thumbnail definition, coupled with a further explanation of what may be alleged as a change of position for the worse is found in Staley v. Staley, 251 Md. 701, 248 A. 2d 655 (1968), where the Court said, at 703:

“The doctrine of laches is an application of the general principles of estoppel, and consists of two elements — negligence or lack of diligence on the part of the plaintiff in failing to assert his right, and prejudice or injury to the defendant. Parker v. Board of Elec. Sup., 230 Md. 126, 186 A. 2d 195; Croyle v. Croyle, 184 Md. 126, 40 A. 2d 374. As set out in Croyle\ ‘The very heart of the doctrine of estoppel, through laches, is that the defendant’s alleged change of position for the worse must have been induced by, or resulted from, the conduct, misrepresentation or silence of the plaintiff.’ ”

The principle of equitable estoppel, of which the doctrine of laches is said to be an application, is defined in 3 Pomeroy, Equity Jurisprudence, (5th ed. 1941), § 804, as follows:

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.”

It is abundantly clear that there was evidence in this case sufficient to support the finding by the chancellor of a factual pattern of conduct which would permit Corbin to assert his claim, free of a defense of laches or equitable estoppel. The factual conclusions of the chancellor were not clearly erroneous. Maryland Rule 1086. He correctly applied the law to those facts.

The Finding That Corbin Owned One-Half of Spartan

In their reply brief appellants assert that the court below erred in holding that the parties were joint venturers or partners. They argue this issue by saying that the court incorrectly applied a burden or burdens of proof. We are concerned on appeal with the legal sufficiency of evidence to support findings — not with burdens of persuasion, which are matters of weight and credibility of evidence.

The evidence before the chancellor in this case was sufficient to support a finding that Davis and Corbin acquired Spartan Concrete Corporation together, with the intention that each would own one half. The chancellor so found. His finding was not clearly erroneous, and we may not set aside the judgment based on that finding. Maryland Rule 1086.

Appellants do not question the mechanics set up in the decree to accomplish what the chancellor found to be the substantial rights of the parties. Whether it would have been more correct form to require the issuance of stock in Spartan to Corbin, and to proceed from there, rather than to hold that Corbin and Davis were partners in owning Spartan, does not affect the substance of the decree, and is not before us.

Decree affirmed.

Costs to be paid by appellants.


text:
    IVOR E. B. ROSENCRANTZ et ux. v. SHIELDS, INC.
    [No. 1004,
    September Term, 1974.]

      Decided October 31, 1975.

      The cause was argued before Orth, C. J., and Powers and Moore, JJ.

      Herbert D. Morrison, with whom was Ted R. Hudson on the brief, for appellants.

      M. Albert Momingstar, with whom were David E. Aldridge and Zimmerman, Aldridge & Dwyer on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

In this case, brought to establish title to land by adverse possession, we are asked to determine the effect of prior litigation brought by the same plaintiffs, as adverse claimants in possession, against the same defendant, as holder of record title.

Appellants here, plaintiffs below, are Ivor E. B. Rosencrantz and Shirley E. Rosencrantz, his wife. By deed dated 13 May 1964, they acquired title in fee as tenants by the entireties to two contiguous parcels of land in Frederick County, which together comprise approximately 0.952 acres. Appellants’ grantor, Jesse N. Smith, purchased the combined tract at a mortgage foreclosure sale, and took title by deed dated 13 February 1953.

The appellee, Shields, Inc., defendant below, is the owner of record of the land adjacent on the north and west to that of appellants. Included in the Shields property is an area of about 0.361 acres which abuts the Rosencrantz land on the west. It is to this area that the opposing parties lay claim — the appellants by prescriptive title, and the appellee by record title.

On 20 May 1974, appellants filed in the Circuit Court for Frederick County a bill of complaint against Shields, Inc., to quiet title, establish boundary lines, and for further relief. It is apparent that the appellants timed the filing of their complaint so as to avoid the problem which had caused their failure in the prior litigation. In their complaint appellants described the land owned by them, and the land owned by Shields, including the parcel of 0.361 acres in dispute, alleged that possession of the disputed parcel by them and their predecessors in title “has been actual, open, continuous, notorious and hostile to the claims of others and under a claim of right” for more than 20 years. They claimed legal ownership by adverse possession.

In its answer, Shields denied appellants’ allegations of ownership by adverse possession and further asserted that the subject matter of the complaint was res judicata by reason of the decision of the court in Law No. 7201.

An order signed by Judge Robert E. Clapp on 29 August 1974 referred to a pre-trial conference with counsel for the parties, and directed that the case be heard on 18 September on the issue of res judicata. We assume that the hearing was upon argument of counsel, and that no evidence was taken, because no transcript appears in the record. There followed, however, an 11 page memorandum on behalf of Shields, a 20 page memorandum for Mr. and Mrs. Rosencrantz, and a four page reply memorandum.

On 22 November 1974 Judge Clapp filed an opinion, in which he said:

“This matter was the subject of a prior action at law brought by them [Mr. and Mrs. Rosencrantz] against the defendant [Shields, Inc.] on October 1, 1971, making a similar claim of title by adverse possession and alleging that the defendant broke and entered their property and was thus a trespasser. Judgment in this case went against the plaintiffs and the decision of this Court was on November 1, 1974 affirmed by the Court of Special Appeals.
“The preceding law action was one of trespass to try title in which the plaintiff predicated his right of action upon a claim that the defendant illegally broke and entered his property. Thus, the plaintiffs have admitted an entry by the defendant and this entry, if the defendant is the true owner, was sufficient to interrupt the adverse claim of the plaintiffs and to end the previous adversary possession. Defendant’s title has now been established in the previous litigation, its entry was thus legal, and this terminated the continuity of plaintiffs’ previous possession. See M.L.E., Adverse Possession, Sec. 54. The entire premise upon which the previous suit at law was tried, was the physical interruption and interference with the plaintiffs’ possession.
“The nature of trespass to try title is set forth in Poe, Pleading (4th Ed.), para. 245, where it is stated at pages 224 and 225,
‘Sixth. Where the plaintiff claiming to have the paper title to the land, and by virtue thereof, claiming to be in possession, or claiming title by adversary possession, seeks to recover for a trespass alleged to have been committed by the defendant, who himself also claims title and possession under color and claim thereof, and who justifies his alleged trespass accordingly. Here the controversy will be determined in favor of the party who is found to have the title; the possession in such case being dependent upon it’ (Emphasis supplied).
“Under this rule it appears that the entry of the defendant upon the property was sufficient to break the continuity of plaintiffs’ possession and is thus conclusive of the plaintiffs’ claim in this case.”

A decree dismissing the bill of complaint was signed and filed on 5 December 1974. It is from that decree that this appeal was taken.

The record in the prior action at law in trespass to try title was not, in any formal way, made a part of the record in the equity case now before us. It is obvious, however, that by mutual acquiescence the record in the prior case was considered as being fully before the court. In their brief in the present case the appellants say, in their Statement of Facts:

“In August, 1971, surveyors hired by the Appellee appeared on the disputed tract and began taking measurements and placing markers. The Appellants asserted their ownership of the land and the surveyors immediately left.
“On October 1, 1971, the Appellants filed suit in Trespass, Quare Clausum Fregit, alleging adverse possession from 1951. The jury found for the Appellants, but the Circuit Court granted a judgment N.O.V., because of a failure to show a sufficient transfer of adverse possession to Jesse N. Smith from his predecessor (Mortgage foreclosure sale) in 1953. The Court of Special Appeals affirmed and Certiorari was denied on January 29, 1975.
“On May 20, 1974, the Appellants filed the present suit. The Appellee had not attempted to gain possession, and had not entered the disputed tract at any time since the surveying incident of August, 1971. No legal action or counterclaim was filed by Appellee to obtain an adjudication of their title.”

It was vital to the position of Mr. and Mrs. Rosencrantz in the prior trespass case, and in the present equity case, that they be able to prove continuous adverse possession for more than twenty years. That record title has always been in Shields and its predecessors is not questioned, nor is the location of any boundary line in dispute. The claim of Mr. and Mrs. Rosencrantz depends solely upon adverse possession. The rights of Shields are to be found in its unquestioned record title and whatever constructive possession flows from that record title.

In the prior trespass case it appears that Mr. and Mrs. Rosencrantz proved satisfactorily that they had possessed the disputed property adversely and continuously since they took title in May of 1964. They also proved satisfactorily that their predecessor in title, Jesse N. Smith, occupied the disputed area continuously and adversely at least from May of 1954 to some unspecified time in the latter part of 1963. The occupancy by Mr. Smith was through a tenant. In the court’s opinion which accompanied the order granting judgment n.o.v. for Shields in the trespass case, it was pointed out that there was doubt about the adverse occupancy by Smith between the time he took record title through the mortgage foreclosure sale in February of 1953 and the time his tenant went into possession in May, 1954. Judge Clapp also pointed out the gap in the evidence of possession between the latter part of 1963, when Smith’s tenant terminated his possession, and May 1964, when Mr. and Mrs. Rosencrantz took title. The trial judge did not, however, find it necessary to determine whether those two periods constituted a break in the continuity of adverse possession. He held, correctly, that the adverse possession by Smith or his tenant could be tacked by Mr. and Mrs. Rosencrantz to their own adverse possession because there was evidence that when Smith sold the property to Mr. and Mrs. Rosencrantz he pointed out the boundaries to them on the ground as including the disputed area.

A general rule applicable to tacking by successive owners is stated in Sachs & Sons v. Ward, 182 Md. 385, 35 A. 2d 161 (1943), where the Court of Appeals said, at 394-95:

“* * * appellants’ only possibility of maintaining adverse possession would be by tacking on to their own use and occupancy that of their predecessors in title. This is precisely what this court had already decided cannot be done, the rule being that possession cannot be tacked to make out title by prescription where the deed by which the last occupant claims title does not include the land in dispute.” (Citations omitted).

An exception to that general rule, however, was held by the Court of Appeals to be well recognized in other jurisdictions and was applied as the law of Maryland in Freed v. Cloverlea Assn., 246 Md. 288, 228 A. 2d 421 (1967). One of the authorities there cited which clearly expresses the exception was Ringstad v. Grannis, 171 F. 2d 170 (9th Cir. 1948), in which that Court said, at 174:

“It is generally held that if, in connection with the conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor and not covered by the deed, there is created such a privity that the grantee is permitted to tack the period of the grantor’s occupancy to his own in establishing title by adverse possession to the land not mentioned in the deed. ‘Where the deed is followed by the delivery of possession of the entire inclosure, it is sufficient evidence of a transfer of possession to raise the requisite privity between the parties.’ Rich v. Naffziger, 255 Ill. 98, 99 N.E. 341, 343.”

The basis for the judgment n.o.v. in favor of Shields in the trespass case was that there was no evidence of privity as to the disputed area between Jesse N. Smith and his predecessors in the title which he obtained through a mortgage foreclosure, which meant that the earliest date from which Mr. and Mrs. Rosencrantz could claim adverse possession was 13 February 1953 or, more likely, May, 1954, when Smith’s tenant went into possession. The trespass suit was filed by Mr. and Mrs. Rosencrantz on 1 October 1971, based on an alleged trespass by agents of Shields in August, 1971. Both the date of the trespass and the date of filing of suit were less than twenty years from 13 February 1953. Therefore, the court held, the possession by Mr. and Mrs. Rosencrantz and their predecessor, Smith, even if adverse and uninterrupted, did not continue long enough to establish title.

The bill of complaint initiating the present case was filed on 20 May 1974, more than twenty years from May, 1954, so that the only weaknesses as a matter of law in the position of Mr. and Mrs. Rosencrantz were the possible break in continuity of possession in 1963 and 1964, which we find it unnecessary to consider further, and the effect of the judgment against them in the trespass case.

Although the hearing held in the trial court on 18 September 1974 was intended to be on the issue of res judicata as raised by Shields in its answer, and the actual hearing may have been so limited, the memorandum arguments thereafter submitted by the parties covered the whole field of continuity of possession. In his opinion preceding dismissal of the bill of complaint, Judge Clapp properly recognized that res judicata was not the controlling legal principle. The outcome of the 1974 equity case did not turn solely on questions of what was or might have been decided in the prior trespass case between the same parties, but rather on the question of whether the adverse possession continued without interruption despite the first suit. As we have noted, the lower court held that the entry upon the disputed area by the agents of Shields [in August 1971], being lawful, terminated the continuity of the previous adverse possession.

In this appeal both parties have correctly chosen to focus their arguments on the element of continuity, but they take somewhat divergent views of the determinative issue. Appellants present this question:

“Did the circuit court err by dismissing appellants’ bill in equity on the ground that a trespass by agents of the appellee interrupted the continuity of the appellants’ adverse possession and tolled the statute of limitations?”

The appellee poses the question this way:

“Did the Circuit Court err by dismissing the Appellants’ Bill of Complaint in Equity on the grounds that the prior adjudicated law case effectively determined that the Appellee had possession of the land when it was determined to have the title?”

There is little need to discuss the general legal principles that apply in cases of adverse possession. In Gore v. Hall, 206 Md. 485, 112 A. 2d 675 (1955), the Court of Appeals stated the rule very succinctly when it said, at 490:

“In order to establish title to land by adverse possession under the Statute of 21 James I, ch. 16, which is in force in Maryland, the claimant must show that such possession was actual, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for the period of twenty years. 2 Alexander’s British Statutes, Coe’s Ed., 599-616; Peper v. Traeger, 152Md. 174, 181, 136 A. 537; Tamburo v. Miller, 203 Md. 329, 100 A. 2d 818.”

In Goen v. Sansbury, 219 Md. 289, 149 A. 2d 17 (1959), the Court said, at 295:

“To establish adverse possession, a claimant must show that the possession was actual, open, notorious, exclusive and continuous or uninterrupted for the statutory period of twenty years. Bishop v. Stackus, 206 Md. 493, 498; Peper v. Traeger, 152 Md. 174, 181.”

Applicable statutory law, at the time of the entry upon the disputed area by the surveyors for Shields, and at the time the trespass suit was filed, was found in Code, Article 57, Section 3A, which said, in part:

“No person shall commence an action for the recovery of any corporeal estate in land, leasehold or freehold, or the possession thereof, or make any entry thereon, unless such action is commenced or entry made within twenty years after the right to commence such action or make such entry shall have first accrued to himself or to the person or persons under whom he claims * * *.” *

The court below held that the entry upon the disputed area by surveyors for Shields in August, 1971, broke the continuity of possession by Mr. and Mrs. Rosencrantz. We agree that the continuity of their possession was broken before it ripened into title, and that the bill of complaint in this case was properly dismissed, but we prefer to base that conclusion on a broader ground than the mere entry by the surveyors.

Meeting the basis of the lower court’s decision squarely, and with considerable persuasive effect, appellants argue that the entry of the surveyors for Shields upon the disputed area was not a sufficient entry to interrupt the continuity of their adverse possession. In Wickes v. Wickes, 98 Md. 307, 56 A. 1017 (1904), the Court of Appeals, in holding that an adverse possession had not been interrupted by a claimed entry, said, at 328:

“All the authorities agree that an entry to have such effect must be an actual entry upon some part of the land within the period of limitations, and must evince that it is made with the clear and unequivocal intent to invade and challenge the right of the holder of the adverse possession and to retake possession.”

Citing Wickes v. Wickes, supra, and Hub Bel Air, Inc. v. Hirsch, 203 Md. 637, 102 A. 2d 550 (1954), it is said in 4 Tiffany, The Law of Real Property, § 1161 (3d ed. Callaghan & Co. 1975) that:

“It is well recognized that the running of the statute is interrupted by the owner’s entry on the land, if, and only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession.”

According to 2 C.J.S. Adverse Possession, § 171(1972):

“It is the general rule in many jurisdictions that an entry, during the statutory period of limitations, by the true owner, or by another under his authority, will interrupt the running of the statute of limitations against the owner, provided such entry is made with intention to repossess . . . made known to the claimant in possession. . . .”

The character of the entry necessary to interrupt adverse possession is discussed in 2 C.J.S. Adverse Possession, § 173 (1972), where the writer says:

“A mere physical entry by the owner is not enough, for, in order to defeat another’s adverse possession, the owner’s entry must clearly indicate to the occupant that his possession is invalid and his right challenged. It must be open and notorious and bear on its face an unequivocal intention to take possession, and must be made under such circumstances that, by the use of reasonable diligence, the occupant may ascertain the right and claim of the entrant. The entry, it has been declared, must equal in dignity and character that required to initiate an adverse possession, that is, it cannot be accidental, casual, secret, or permissive.”

With respect to entry to make a survey, the writer continues:

“A survey made at the instance of the true owner and with the intention of merely ascertaining the position of the land does not interrupt the continuity of the occupant’s adverse possession. However, an entry to make a survey, accompanied by a purpose to take possession, will constitute an interruption.”

And see 3 Am.Jur.2d, Adverse Possession, § 90 (1962):

“To toll the running of the statute of limitations by the owner’s entry, the entry need not be made by the owner in person. It may be sufficiently effected by his agent or tenant or anyone who is authorized to act for him. * * * In all cases, however, the intent, as expressed, or evidenced by acts of ownership, is that which governs the effect of the entry. The mere act of going upon the land is not enough. The owner must assert his claim to the land or perform some act that would reinstate him in possession, before he can regain what he has lost. The conduct claimed by an owner to work an interruption of adverse possession must be such as would put an ordinary prudent person on notice that he actually has been' ousted. Not every act by the owner on the land interrupts actual adverse possession. For example, the posting by the record owner of a ‘notice to prevent easements’ under a statute, while constituting an act of ownership and evidence bearing upon the continuity of adverse possession, does not necessarily, as a matter of law, interrupt such possession.
“Even after a sufficient entry has been effected by the owner, if the disseisor still remains in possession as a wrongdoer, such possession will have the effect of a new disseisin.”

In 5 Thompson, Commentaries on the Modern Law of Real Property, § 2552, at 576-78 (Grimes repl. 1957) the author says:

“As a general rule, an entry upon or possession of the lands claimed by another, which, in the first instance, would suffice to effect a disseisin or ouster of the real owner, will break the continuity of the holder claiming by adverse possession. Such an entry upon or occupation of the land by the true owner for any portion of the period of adverse possession by the claimant will, as a general rule, break the continuity, and destroy the adverse possession. Especially is this true where such entry is followed up by possession by the owner, although the adverse claimant continues in possession as before such entry. To have this effect the entry need not be by the owner in person, but it may be by his agent. Entry by the agent or licensee of the record owner of the land may be sufficient to interrupt the running of the statute. However, the reentry and consequent interruption of the possession must rise in dignity and character to that required to initiate an adverse possession. It is not every entry, however, by the owner that will destroy the adverse possession, but to effect this, he must assert his claim to the land by acts of ownership. * * * An entry on land by a person disseised, merely for the purpose of seeing if there is any evidence of an adverse occupation, is not, as a matter of law, conclusive evidence of an interruption of the disseisor’s possession.”

Whether the making of a survey will interrupt the continuity of adverse possession sufficiently to toll the running of limitations must necessarily be decided in each case according to the circumstances. The reported cases in other jurisdictions appear to support the general proposition that a survey, without more, is not enough.

In Maysville & B.S.R. Co. v. Holton, 100 Ky. 665, 39 S. W. 27 (1897), the court held that the making of surveys on behalf of a railroad which had obtained a right of way by deed failed to establish reentry sufficient to interrupt the continued and actual adverse possession of the occupants. Before the holder of record title can regain what he has lost, the court said, at 29, “[h]e must assert his claim notoriously and openly, or perform some act that will reinstate him in possession.” The court concluded:

“The mere entry for the purpose of survey, or to drive down stakes, is not sufficient to divest the occupant of title who holds the possession and claims the property, or to give notice to the occupying claimant that the company was asserting the right of way over his farm.”

In City of New Orleans v. Peterson, 142 So. 2d 174 (La. App. 1962), the ownership of a strip of land which the City sought to expropriate was contested by two claimants — one claiming by record title, the other by adverse possession. The court held that the constructive possession of the titleholder did not oust the actual possession of the adverse claimant. A survey had been made during the period necessary to support the claim by adverse possession. However, the court noted, at 178, that the mere entry of a surveyor “for the purpose of establishing the corners of the squares was not in our opinion a disturbance of the possession of the railroad [adverse claimant].”

In Alukonis v. Kashulines, 97 N. H. 298, 86 A. 2d 327 (1952), the court held the evidence sufficient to support a jury verdict in favor of the adverse claimant where possession of the disputed strip passed uninterruptedly to him from his predecessors in title. At 329, the court ruled that the evidence of a survey on behalf of the titleholders was “not sufficient to establish as a matter of law such an exercise of dominion over the strip by its record owner as to interrupt the continuity of the adverse possession of plaintiff and her predecessors in title.”

In La Freniere v. Sprague, 108 R. I. 43, 271 A. 2d 819 (1970), the court held that occupancy because of a mistaken belief as to the location of the true boundary line was not fatal to a claim by adverse possession. Nor was the adverse claim defeated by the conduct of the record owners in having a survey made, placing marker stakes, and informing the parties in possession of their mistake where they immediately removed the stakes and continued to occupy the disputed area.

In Illinois Steel Co. v. Budzisz, 115 Wis. 68, 90 N. W. 1019 (1902), the continuity of adverse possession was held to have been interrupted as a matter of law. The court relied on a survey made on behalf of the record owner in conjunction with other acts by him, including acknowledgments by residents, apparently squatters, that they occupied by permission from him, as the true owner. The court found that the owner’s entry was made with the intent of asserting his claim and was so public in character that the adverse claimant had ample notice of that intent. The court noted in particular that considerable time was consumed in making the survey, and that there were repeated entries by the owner.

Although the Court of Appeals of Maryland has never been called upon to consider the effect upon the continuity of adverse possession of an entry upon land by the record owner for the purpose of making a survey, the Court did consider the converse in Beatty v. Mason, 30 Md. 409 (1869). In that case, one of the acts shown to support a claim of adverse possession was that the adverse claimant had caused a survey to be made of the disputed property. The Court said, at 414:

“A survey, unaccompanied by any other act of user and occupation, is not such a distinct and notorious act of possession as will justify the reasonable presumption of an ouster, or that the party went upon the land with a palpable intent to claim the possession as his own.”

If entry by a record owner, in order to interrupt the continuity of adverse possession, must equal in dignity and character that which would be sufficient to initiate an adverse possession if the land were owned by another, we doubt that the mere entry by agents for Shields upon the disputed land, standing alone, was a sufficient entry, under Code, Art. 57, § 3A, to interrupt the possession of Mr. and Mrs. Rosencrantz. We do not decide this question, however, because we are satisfied that the adverse possession was interrupted by the successful defense of the subsequent trespass suit.

If an action of ejectment, trespass to try title, or other appropriate action for the recovery of its corporeal estate in the land had been commenced by, rather than against, Shields, the filing of the action on 1 October 1971 would have interrupted the continuity of the adverse possession. Id. But the interruption did not take place with the commencement of the action, because the filing of suit by Mr. and Mrs. Rosencrantz was not an assertion of rights by Shields. It was the defense by Shields to the suit which constituted an assertion by it of an opposing right. It was that opposing claim by Shields which, when successfully prosecuted to judgment, interrupted the adverse possession.

The only remaining point which requires notice is that, even after it was adjudicated to hold title superior to that of appellants, Shields has not physically retaken possession. Mr. and Mrs. Rosencrantz have remained as before. We hold that this failure of Shields to reenter did not impair its right to do so. At most, the appellants started over again, from zero, on a new period of adverse possession.

The author says in 5 Thompson, Commentaries on the Modern Law of Real Property, § 2552, at 572-73 (Grimes repl. 1957):

“Possession by the adverse claimant must be uninterrupted for the full statutory period, for to break effectively the possession at any time before the period has fully expired will arrest the running of the statute. The moment the running of the statute of limitations is interrupted the law restores the possession to the holder of the legal title, and the claimant by adverse possession must begin de novo. Upon interruption of the possession before completion of the statutory period, the possession of the true owner constructively intervenes, and should the claimant resume possession, the statute of limitations begins to run at the date of such resumption, and must run for the full statutory period thereafter in order to give the claimant title. If the possession be interrupted, either by fraud or force, or by process of law, the statute begins to run only from the time of reentry.”

See 3 Am.Jur.2d Adverse Possession, § 84 (1962), where it is said:

“The bringing by a claimant in adverse possession of land of an action involving title thereto which is based on the existence of a right in another is such a recognition of that right as will arrest the running of the statute of limitations in favor of the occupant and against such right.”

In the same text it is said, in § 91:

“Where, in an action involving the title to land, one of the parties claims title by adverse possession, an adverse judgment though not put into effect by writ of possession breaks the continuity of his possession, and though he thereafter remains in possession of the land he is estopped by the judgment from claiming title to the land so long as the judgment remains in effect.”

In 2 C.J.S. Adverse Possession, § 191 (1972), it is stated:

“Where suit is brought by claimant concerning his title or right of possession, defendant’s answer disputing the plaintiff’s title and claiming ownership may constitute an interruption of the continuity of adverse possession; but it has been held that an unsuccessful denial of title of plaintiff does not break the continuity of adverse possession.”

and it is further stated, .§ 192:

“A final judgment against the adverse claimant, in possession in a suit of trespass to try title, although not disturbing actual possession will interrupt the running of limitations in favor of such occupant and all persons claiming from or under him * *

It may be helpful to summarize what we have discussed at considerable length in this opinion.

The 1971 trespass case decided that the appellee had good title to the disputed land, and rejected the claim of the appellants that they had acquired title by adverse possession.

In the 1974 equity case the entire record in the 1971 trespass case was properly before the court.

The entry upon the disputed land by the agents of the record owner in August 1971 did not, as a matter of law, interrupt the adverse possession.

The filing of the trespass case by the adverse claimants in possession, on 1 October 1971, did not interrupt their adverse possession.

Opposition by the record owner by way of defense in the trespass suit did interrupt, conditionally, the continuity of the adverse possession.

The conditional interruption became absolute with the judgment favorable to the record owner.

That judgment carried with it constructive possession by the record owner, and wiped the slate clean of prior adverse possession.

When the appellants filed their bill of complaint in the present case their adverse possession had existed about seven and one half months at most, and the complaint was properly dismissed.

Decree affirmed.

Appellants to pay costs.

      . The corresponding provision, effective 1 January 1974, appears in Courts Article, § 5-103, which says:
      “(a) In general. — Within 20 years from the date the cause of action accrues, a person shall:
      (1) Pile an action for recovery of possession of a corporeal freehold or leasehold estate in land; or
      (2) Enter on the land.”