text:
    THE MARYLAND COAL AND REALTY COMPANY v. JONATHAN J. ECKHART et al.
    [No. 781,
    September Term, 1974.]

      Decided April 8, 1975.

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

      Hugh A. McMullen, with whom were William H. Geppert and Geppert, McMullen & Paye on the brief, for appellant.

      G. Douglas Reinhart, Marvin I. Singer and J. Michael Lawbr, with whom were Robert L. Sullivan, Jr., and Sullivan, Wiesand & Singer, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

That “any person may obtain a patent for vacant land” from the State may come as a surprise in this day and time. The authority is the vestige of a thriving real estate business conducted centuries ago and inherited from our British progenitors. As recently as 1972 the Maryland General Assembly completely revised the land patent procedures “to provide a simple and convenient method for obtaining such patents.” Laws of Md. 1972, Ch. 349.

The State’s authority to patent lands derives from its sovereign heritage. In 1631 the royal charter of Charles I granting what is now Maryland to George, Lord Baron of Baltimore, “authorized [him] to create manors, with courts baron and all things appertaining to them, with views of frank-pledge, etc. Charter of Md. sec. V, XVIII and XIX.” J. Brewer and L. Mayer, Land Office in Maryland (1871) at 1. Maryland was then in the nature of a grand-fief or honor, held by tenure of “free and common socage” whereupon the Lord Baltimore presented “to the King two Indian arrows annually” in petit serjeanty2 and “the power of sub-infeudation was expressly conferred.” Matthews v. Ward, 10 G. & J. 443.

This power was exercised by the different “Lords Proprietary,” the sale and leases of their land forming the principal portion of their resources. Consequently beginning around 1680 the Land Office became the principal office of the Province. See generally Kilty, The Landholder’s Assistant, (1808).

The first formal instructions given by the Lord Proprietor to his Land Council in 1684 substantially remain the basic procedure for petitioning vacant land by warrant of survey or contiguous vacant land by warrant of resurvey. Md. Code, Art. 21, Title 13, Land Patents (now Real Property Article, Title 13). Brewer and Mayer, supra, said at 2-3:

“ ‘ The Land Council is first authorized to give, grant, lease or otherwise dispose of all land escheatable for want of heirs. Any error made by surveyor or clerk in certificate or patent, to be corrected, rectified and amended, as the case shall require.
‘Any person owning two or three or more tracts of land contiguous or adjoining, upon application the Land Council may grant special warrant to resurvey or to lay out the same into one entire tract and grant patent for the same.
‘May grant land of an alien, not naturalized, that may escheat to the Proprietary.
‘Where it hath been discovered or made known to the Land Council that any grant hath been illegally or surreptitiously obtained, the Land Council are required to order scire facias to issue forth out of the Chancery Court of Records to the patentee or other present owner and possessor, to show cause why the same should not be vacated.
‘Should the Land be adjudged and condemned to the Proprietary for the reasons aforesaid, then the Land Council may, by letters patent or otherwise, give, grant or dispose of the same to the discoverer thereof.
‘The Land Council may, upon the death of the Surveyor-General, extend or continue any special warrant or warrants of re-survey.
‘They cannot grant any patent for any tract of land that is part or parcel of a greater tract formerly granted.
‘Authority is given to the Land Council to sign all patents legally obtained and affix the great seal.’ ”

For full instructions see Kilty, supra, at 112-117.

The process survived the Revolution as evidenced by Chapter 15 of the Act of General Assembly, April Session, 1777. This Act manifested the legislative intent that the business of the Lord Proprietor’s Land Office, in respect to lands not yet granted, be assumed by and carried on under the authority of the State, rather than the Proprietary. The importance of the land office was further enhanced by the Acts of Assembly, Laws of Md., October Session, 1780, Chs. 45, 49 and 51, whereby all property of British subjects was declared confiscated for use by the State.

Although the land office was divided to accommodate the citizenry by an office and Registers on each side of the bay, the judge of the Land Office on the Western Shore was, from a very early period, the Chancellor of the State. Following the adoption of the Constitution of Maryland in 1850, a more explicit and comprehensive procedure was enacted under the administration of Governor Enoch Louis Lowe. It expressly authorized the Commissioner of the Land Office to issue patents for lands, especially those lands confiscated from British subjects. Included, presumably, was Sir Robert Eden who, as Governor of the Province, was the last representative of the Lord Proprietary when the differences with Great Britain culminated in the act of formal separation by the Colonies, declaring themselves to be independent states.

The Procedure

Although the procedural particulars have been changed from time to time, the general procedure, sufficient for our purposes here, has not. “The land office has always been, as it now is, the general market in which all public lands have been offered for sale; and into which any one capable of holding real estate might come and purchase according to the prescribed rules and terms of sale .... If the rules of the office were complied with, and the purchase money paid, a grant for the land was issued as of course, otherwise not.” Baltimore v. McKim, (1831) 3 Bland 453, 455-456.

Any person desiring to take up vacant lands would apply to the Commissioner of the Land Office for a warrant of survey or resurvey, directed to the County Surveyor requiring him to survey the vacant land in question. After the surveyor returned the certificate of survey it was required to remain in the Land Office for six months during which time the claim was subject to caveat. If none was filed and the “whole composition or purchase money” has been paid, the applicant or successors in interest was entitled to a patent to the land. Obviously there were prescribed procedures for public notice required which varied over the years. Once the patent emanated properly signed by the Governor and sealed by the Great Seal of Maryland, no caveat could thereafter be entered. Steyer v. Hoye, 12 G. & J. 202, (1841).

A caveat is the procedure to oppose issuance of a patent by the Land Office. It serves as a warning to the Commissioner not to put the seal on a patent for a tract of land as prayed. A caveat unheard or unacted upon was permitted to continue no longer than twelve months, Acts of 1797, Ch. 114. The grounds upon which a caveat could be entered included a showing that no grant ought issue because it would be unjust to the public or to some individual. Upon the filing of a caveat the Commissioner would assign the cause for hearing.

Since a patentee could only take subject to all prior claims, encumbrances and equities, the decision on a caveat was not conclusive of the right. Baltimore v. McKim, 3 Bland at 459. For that reason, the general rule of the Land Office in doubtful cases was to let the patent issue, for if it were granted, the question thereafter could be brought before a court of law or equity to vacate the patent. Jones v. Badley, 4 Md. Ch. 167.

However in 1852 a right of appeal from the final decision of the Commissioner of the Land Office was permitted to the Court of Appeals by Chapter 361 of the General Assembly. In 1853, the Legislature assured the conclusiveness of the Commissioner’s determination by declaring:

“That the court of the commissioner of the land office, is hereby erected into and declared henceforth to be a court of record, with the same powers to preserve order, punish contempts and enforce obedience to the proper order and adjudications of the said commissioner, as are now possessed by any court of record of this State.” Laws of Md., 1853, Ch. 415.

He That Hath Land, Hath Warre at Hand

To avoid the confusion of multiple praenominae by tracing title to the land in dispute, we will adopt the procedure of using “appellant” and “appellee” to include their predecessors in interest when appropriate. For those more precisely inclined we have appended our title notes grudgingly extracted from the record.

It would appear that in 1809 appellee patented two claims of vacant land — “Hope in Prospect” and “Stoney Bottom,” part of which was contiguous to the then vacant land which is now in contention. In 1839 appellant patented a tract of over 4000 acres which appears to have included the land in question and which appellant entitled “Mark Amended.” The 1839 patent was not introduced as evidence in this case but was subsequently offered as “newly discovered evidence” in a Motion for New Trial. Appellant’s patentee, however, was referred to in the “being” clause of deeds dated 1852 which were introduced below by appellant as the source of its title. Motion for New Trial on the ground of the “newly discovered” patent was denied by the chancellor below, which denial is contended by appellant as an abuse of his discretion.

In 1848, four years prior to appellant’s deeds, appellee applied for a warrant of resurvey which proposed to encompass all of “Hope in Prospect” and “Stoney Bottom” consisting of 369 acres which had been acquired in 1809, and the adjacent “vacant” land consisting in itself of 776 acres. The newly formed tract was to be called “Gerrard.” That patent petition was all but concluded when the petitioner died. He had paid the “whole composition or purchase money,” had been issued the warrant of resurvey, had the certificate filed but died while it lay in the Land Office for six months pursuant to law. The patent was never delivered to him; however, in 1874, in accordance with his daughter’s petition, the patent was ultimately issued to her. There had been intervening caveats by appellant filed in 1868 when the daughter petitioned for the certification, and again in 1870, before she received it, both of which were overruled by the Commissioner of the Land Office. The caveats were detailed and clearly revealed that their claim was based upon the 1839 patent genesis. Unexplainably, however, when the hearing was set, appellant failed to appear and the Commissioner overruled the caveats for that reason.

Appellant also introduced without clarifying testimony patent issued it in 1870 pursuant to a resurvey of the first part of Mark Amended, a portion of the 4,131V2 acre tract acquired in 1839:

“In pursuance Whereof, a Resurvey was made, on the First part of the aforesaid tract of Land called “THE MARK AMENDED”, and a certificate thereof returned, when the same was found to contain, with twenty eight and one half acres of vacant land added, the quantity of six hundred and fifty two acres of land, and called “MARK AMENDED RESURVEYED”. That the said Cumberland Coal and Iron Company fully compounded for the said vacancy according to law, and since by their deed bearing date the first day of March, 1870, conveyed the said land unto the Consolidated Coal Company, as appears;
The State of Maryland doth therefore hereby grant unto the said Consolidated Coal Company, the said land resurveyed as aforesaid, with the vacancy added, reduced into one entire tract, and called “MARK AMENDED RESURVEYED” lying and being in Allegany County aforesaid.”

The respective title chains after the 1874 patent issuance are not at issue here, except for descriptive deed references to which we will later allude.

The Issue at Hand

The land in question, located on the side of a mountain, is rough, rocky, well forested and underlain with seams of coal. Appellant is a coal company, The Maryland Coal and Realty Company, and the primary appellees are Doctor and Mrs. Jonathan Eckhart. Both parties have made some use of the land over the years but due to its remoteness, they have not come to cross purposes heretofore, save in the 1870’s.

One can imagine the chagrin of the appellant which had hired a consulting engineer to make a timber study only to learn from the report that the timber was gone. Apparently in 1969, without the knowledge of appellant, Dr. Eckhart had contracted with the Curry Lumber Company to cut and remove all timber then “standing and growing on Owners’ [Eckharts’] land located near the village of Clarysville, Allegany County, Maryland. . . .” Its chagrin was aggravated when it became aware that the Eckharts had also sold 60,000 cubic yards of dirt from the tract. This precipitated round two of the battle for Mark Amended, coming as it did over a century after appellant’s ignominious retreat from the 1870 lists.

Appellant sued appellees in trespass and negligence claiming double the value of the timber cut under Md. Code, Art. 66C, § 368, and for the ejectment of Dr. and Mrs. Eckhart who had built their home, and now reside, upon the land in question. The issue was tried before Judge Harold E. Naughton and a jury in the Circuit Court for Allegany County. Judge Naughton directed a verdict for appellees on the negligence issue and submitted the remainder of the case to the jury on the following issues:

“1. Does the Plaintiff, The Maryland Coal and Realty Company, have good paper title to the land in dispute? [No]
2. Do the Defendants, Jonathan J. Eckhart and Sally A. Eckhart and the Gerrard Company, have good paper title to the land in dispute? [Yes]
3. Does the Plaintiff, The Maryland Coal and Realty Company, have title to the land in dispute by adverse possession? [No]
4. Do the Defendants, Jonathan J. Eckhart and Sally A. Eckhart and the Gerrard Company have title to the land in dispute by adverse possession? [No] l
5. Was the Plaintiff, ;The Maryland Coal and Realty Company, in actual possession of the disputed land at the time of the alleged trespass? [No]”

The jury found under question 4 that the Eckharts had not acquired by adverse possession; however, on question 2, the jury found that appellees, the Gerrard Company and the Eckharts, had good paper title. The jury found against appellant on all other issues.

An albatross in the wake of every title searcher is the ominous question of whether he has gone back far enough in the chain of title. The Circe of the trial lawyer is reliance upon headnotes as the law of a case. Both of these spectres assumed the substance of reality for appellant. It poses to us an even dozen questions:

I. Did appellant’s predecessor acquire good title to “Mark Amended” by adverse possession as matter of law and convey the same to appellant by good and sufficient deed?
II. Did appellant’s predecessor acquire title to “Mark Amended” by good and sufficient deeds, which were superior in title to all others claiming an interest in “Mark Amended”?
III. Did the adverse possession of “Mark Amended” by the appellant, and its predecessors in title, bar any. claim to “Mark Amended” of the appellees, under the patent in 1874, issued for “Gerrard”?
IV. Did the Court err in granting Issue No. Four which permitted the Jury to find that the appellees Eckhart and The Gerrard Company had title to the land in dispute by adverse possession?
V. Did the deed from Elizabeth Hitchins, et al., to appellees in 1964 contain a legally sufficient description of “Mark Amended” to constitute good paper title?
VI. Did the patent issued to appellees’ predecessors in 1874 contain a legally sufficient description of “Mark Amended” to constitute good paper title?
VII. Should the Trial Court have entered judment as a matter of law in favor of the appellant and against appellees in the amount of $50,703.20?
VIII. Did the Trial Court err in submitting the case to the Jury?
IX. Did the Trial Court err in granting appellees’ First Instruction to the Jury?
X. Did the Trial Court err in instructing the Jury with regard to constructive possession of the land in dispute?
XI. Should the Trial Court have granted appellant’s Motion for Trial before the Court without a Jury?
XII. Should the Trial Court have granted a new Trial on the ground of Newly Discovered Evidence?

Paper Title

Newly Discovered Evidence

By means of the contention that its motion for new trial on grounds of newly discovered evidence was erroneously denied, appellant brings to our attention an 1839 patent purportedly for the land in dispute, which if authenticated and introduced at the trial would have, according to appellant* given title by prior claim. This would have been so, one might argue, because prior to the right of appeal granted in 1852 and the establishment of the Land Office as a court of record in 1853 the appellee’s 1848 patent was not conclusive because the “patentee could only take subject to all prior claims, encumbrances and equities.” Baltimore v. McKim, 3 Bland at 459. Accepting that principle for argument’s sake, the trial court did not have before it that 1839 patent. Appellant informs us that it was discovered in. its large vault several days after the trial and promptly verified in the Annapolis “Hall of Records” office. Appellant argues that “the failure to discover this patent was not due to any lack of diligence on its part...” because “no reference to any such patent was contained in the Land Records of Allegany County and it was purely by accident that appellant discovered a copy of the same in its vault which contained hundreds of documents of all types.”

The grant or refusal of a new trial is a matter of discretion with the trial judge which discretion is “not reversible on appeal, at least when the trial court fairly exercised its discretion.” Leitch v. Anne Arundel County, 248 Md. 611; Murphy v. Bd. of Co. Comm., 13 Md. App. 497, 513. When such a motion is made on the grounds of newly discovered evidence that evidence must not have been “previously discoverable by due diligence.” Wash., Balt. & Annap. Elec. R.R. Co. v. Kimmey, 141 Md. 243; 58 Am. Jur. 2d, New Trial § 168; J. Poe, 2 Pleading and Practice at Law, (Tiffany ed.), § 338 at 323.

Faced with the accidental discovery in its own vault appellant could hardly claim due diligence. Beyond that, two of the three 1852 deeds which appellant introduced contained “being” clauses referring to George Peter, who, according to appellant’s argument, was the patentee in 1839. The failure to follow that lead to its Hall of Records source itself contradicts the showing of due diligence necessary to overcome the trial judge’s discretionary denial. When coupled with the patent’s presence in appellant’s own vault, to have granted the new trial on the grounds asserted may well have been an abuse of discretion. Surely there is no showing of discretionary abuse in the denial of a new trial.

Effective Date of Title

We then have as the starting place of title before the court the appellee’s 1848 warrant of resurvey, consummated in an 1874 patent. Appellant claims that by the obtention of its own patent in 1870 (prior to consummation of the 1848 warrant by issm ice of a patent to petitioner’s daughter in 1874) and by virtue of its intervening 1852 deeds, the trial court erred in instructing the jury that as a matter of law the appellee’s deed provided a superior claim to title because it related back to 1848.

The instruction was not in error. The Hall of Records certification of “Gerrard” introduced in evidence by appellee shows:

Warrant of Resurvey granted to Clary — May 20,1848
Resurveyed — May 19,1849
Passed by Examiner General’s Office —July 23,1849
Compensation due paid —July 23,1849

It was noted in Steyer v. Hoye, supra, 12 G. & J. 202 (1841) that:

“It is a general and well established rule of the land office, that no patent shall be issued for any land for which a patent has been previously granted; yet it often happens from inattention or accident, that this rule is not observed, and therefore it has been laid down from a very early period that a patent always gives title by relation from the date of the certificate, special warrant, or entry in the surveyor’s book, on which the land has been particularly designated and described, Per Bland, L.L.O.” [Emphasis added].

Earlier, this was authoritatively ingrained in our law in Cunningham v. Browning, 1 Bland 299, 326 (1827),

“It is a well settled general rule, that under a special warrant the title to the land commences from the date of the warrant itself; because the description of its location, embodied in the warrant, has distinguished it from every other tract. The warrant is, therefore, in itself equivalent to a designation by an actual survey. So too the title commences with the date of a warrant of resurvey, and of an escheat, or a proclamation warrant. But upon a common warrant, it only commences with the date of the certificate of survey; or from the date of the entry of a special location upon the surveyor’s book. The land aimed at becomes thus bound, because of its having been, by some of these modes, accurately described and distinctly specified. ...” [Emphasis added],

and was appropriately applied in the relatively more current case of Smith’s Lessee v. Devecmon, 30 Md. 473 (1869), wherein the same sequence of events occurred as in the present case. The Court held that:

“There can, therefore, be no question of the fact that the title of the appellant to the land in controversy commenced from the date of his warrant, on the 24th of October, 1862, before Thos. Devecmon applied for his warrant. The latter could only take, under his warrant, survey and patent [Sept. 25, 1863,] a defeasible title, liable to be defeated, upon a compliance with the requirements of the law by the appellant and the issuing of a patent to him. All that was required to be done by the appellant, was performed by him in the prescribed time, and he, therefore, became entitled to his patent. This he did not obtain until the 1st day of March, 1866, and when thus obtained, it related back to October 24th, 1862, from which date his title to the land described in his patent, is now considered as perfect. No title, therefore, could, or ever did, vest in Thomas Devecmon, and consequently there is no title in the appellees. The court below erred in rejecting the appellant’s prayer, which ought to have been granted and its judgment must be reversed, and judgment entered in this court for the appellant.” Id. at 482.

It becomes undeniably clear that on the basis of the title documents before the trial court, appellant’s patent of “The Mark Amended Resurveyed” obtained in 1870 did not supersede appellee’s 1848 warrant and patent “now considered as perfect.” We cannot help but note that the caveats filed by appellants in 1868 and 1870 show a clear understanding of the conflicting issues prevailing at the time and yet appellant then elected not to appear at the caveat hearing. We must further note the possibility that had the 1839 patent been in evidence below and contained the description of the contested land, the result may or may not have been other than it is as to paper title. Neither we nor the court below, however, can speculate upon that which is not produced as part of our deliberations.

Sufficiency of Description in the Appellee’s Title Chain

Appellant’s broadside includes blasts upon two documents of title in appellee’s chain, the 1964 deed to the Eckharts from Elizabeth Hitchins, et al. and the 1874 “Vrooman patent” issued upon, and dating back to, the 1848 application and Warrant of Resurvey. Because of a passing recitation of acreage substantially less than that described in the 1964 deed and the absence of the name by which appellant elects to refer to the land, “Mark Amended,” it would have us disregard the Hitchins deed. Presumably appellant’s contention is that the jury did not have a sufficient description in either of these documents to treat them as connecting links in appellee’s chain of title.

Although appellant overlooked a metes and bounds description and an appended plat in both deed and patent proceedings apparently the jury did not. Beyond that, the deed as well as the Vrooman patent petition contained detailed and specific references to the antecedents of the lands described. That appellees called it “Gerrard” as opposed to appellant’s appellation “Mark Amended” is a matter of preference which, as a result of this proceeding, has become a matter of right.

We have, therefore, responded to all of appellant’s questions regarding paper title, i.e., questions II, V, VI, IX and XII. We turn now to those relating to

Adverse Possession

Appellant lists numerous acts asserting ownership by his predecessor in interest which he claims sufficient for it to have acquired title by adverse possession. The list is impressive and includes paying taxes, defending a condemnation proceeding in 1879, conveyances of property and rights of way therefrom, timber sales, and surveys. Assuming color of title, Gore v. Hall, 206 Md. 485, 490, the period described commences in 1879 and ends of recent date, comprising nearly one hundred years. Citing Thistle v. Frostburg Coal Co., 10 Md. 129; New Windsor v. Stocksdale, 95 Md. 196, 214 appellant argues that “[t]his matter should not have been submitted to the jury. The matter of possession is a question of law to be determined by the Court.”

We are surprised that appellant raises that question and even more so that he cited to us the very page of a case holding the negative answer. In New Windsor, 95 Md. at 214 the Court of Appeals met the same question appellant raises:

“But was there a question of law submitted to the jury? ‘What constitutes possession,’ says Mr. Poe, ‘is a question of law for the Court upon the facts of the case.’ Poe Pl., sec. 246. This is absolutely correct in the connection in which it is used. The learned author was dealing with the question of adverse possession and all of the cases cited in the note to sec. 246 are cases of adverse possession. What constitutes such possession is obviously a question of law for the Court; but whether facts exist is a question for the jury. Matthews v. Ward, 10 G. & J. 443; Thistle v. Frost. Coal Co., 10 Md. 146; Keener v. Kauffman, 16 Md. 307; Sadtler v. Peabody Heights Co., 66 Md. 1.”

We note that Thistle, supra, 10 Md. 129, the other case relied on by appellant for its position, is cited by the New Windsor Court for the opposite understanding.

Thistle is even more interesting for its interpretation of the statute appellant argues supports its claim. The statute it quotes for the proposition that it need not have enclosed its adverse claim is Md. Code, Art. 75, Sec. 33, which read:

“In all actions at law, where the title to land is in question, it shall not be necessary for any party to any such action to prove that the lands in controversy have been patented; but a patent shall in all cases be presumed in favor of the party showing a title otherwise good; and actual enclosure shall not be necessary to prove possession, but acts of exclusive user and ownership, other than enclosure, may be given in evidence to the jury to prove possession.”

The Court in Thistle, 10 Md. at 146-147, wrote of this statute:

“As the act of 1852 is in contravention of the common law, we are not disposed to give it a very liberal construction. Possession therefore claimed under it, must be proved with clearness and precision. It must cover the full period of twenty years, it must be adverse, exclusive and unbroken, and the acts of user and ownership, relied on, must be such as will comport with the character of the claim of title of him, who asserts ownership against the world, and should not consist of acts merely, which might be done by any and all persons with impunity, in common with him who claims to be the real owner.”

The acts of ownership asserted on this sprawling acreage were neither exclusive nor unbroken. They jumped about sporadically from an 1879 condemnation to an 1890 resurvey, a sale in 1915, a review of marking stones “on many occasions” between 1916 and 1946, four surveys within 80 years, test borings “during the 1920’s” and a timber lease in 1944. This is scarcely proof of possession “with clearness and precision.”

Appellant concedes that the “uncontradicted evidence in this case discloses that while appellees and their predecessors in title had possession of certain parts of ‘Gerrard,’ the entire area of the land in dispute namely, ‘Mark Amended,’ was in the possession of appellant and its predecessors in title.” This concession and refutation indicate a basic question for jury determination. Both “Mark Amended” and “Gerrard” were larger tracts surrounding the peripheries of the land in contest. The respective patent applications were made to acquire title to the land in question, then “vacant” and adjoining other lands of each prospective patentee. Certainly an issue to be decided by the fact finder was whether there was constructive possession by either litigant of the disputed land under Art. 75, § 33, supra, i.e., by possession of part of the larger encompassing tract claimed by them under color of patented title.

“Generally one who has color of title, like one who has actual title, has constructive possession of the land within the outlines of his title, although he actually occupies only a part of it. However, one who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy. Thus if a true owner be in actual possession of part of the whole land to which he has record title, he is in constructive possession of all of the land which is net actually possessed by another, who claims through color of title, and this although the owners actual possession is not within the limits of the land claimed by the other. This result has been reached by the cases because both parties cannot be seized at the same time of the same land under different titles; and the law adjudges therefore, the seizen of all that is not in the actual occupancy of the adverse party to him who has the better title.” Goen v. Sansbury, 219 Md. 289, [Emphasis added].

Appellant’s questions I, III, IV and X are thus answered. Adverse possession by appellant’s predecessor in title was not shown “as a matter of law” and the contrary determination by the jury is presumptively correct. The question was properly one for the jury and was decided adversely to appellant. It follows then that without a finding of adverse possession or proof of paper title by appellant there was no bar to appellee’s 1848 patent for Gerrard.

Finally, appellant’s contention that the question of the Eckharts’ claim of adverse possession should not have gone to the jury, is without purpose. Even if the submission of the question to the jury had been error (which it was not) the finding of the jury would erase the erroneous reference. Since appellant sought the negative finding the jury made, he would be in no better position had the same finding been made as a matter of law. It is equally apparent that any issue regarding the court’s instruction on constructive possession of the Eckharts was mooted when the jury found insufficient adverse possession on the part of the Eckharts.

Conclusion

The remaining questions are resolved by the conclusions reached above. Questions VII and VIII were both founded on the appellant’s erroneous understanding that “the matter of possession of land is a question of law to be determined by the Court.” Thistle, supra, 10 Md. 129; New Windsor, supra, 95 Md. 196. As we have pointed out, appellant neglected to turn the page. In Question XI appellant asks whether the court should have granted its motion for trial by court rather than before a jury. Although it would appear that appellees Eckhart did not conform to Md. Rule 343 c, it is equally apparent that appellee Curry did so in that her request was filed with her first responsive pleading. Appellant ascribes no prejudice to itself nor does it give us reasons why its motion for court trial should have been granted save its opinion that a jury could not understand the complexities and, that on the first seven occasions that the case was set for trial, the parties had agreed that it would be tried without a jury. Except for appellant’s motion, the record is devoid of any such agreement or of the history' appellant relates.

Nor does the record indicate that the judge abused his discretion in permitting Eckhart to be tried by the jury Curry had demanded under the rule. Appellant did not move for separate trials but rather moved to deny even Curry her constitutional right to a jury by which Eckhart too acquiesced to be tried. Without separate trials it would have been an awkward case indeed had the judge answered the issues presented as fact-finder for one defendant while the jury decided them for another. The hybrid resulting would have been schismatic. It is the right of a trial by jury which is guaranteed by the Constitution, not the right of a trial by court. Md. Comm. Developers, Inc. v. State Roads Comm’n, 261 Md. 205. Not only do we believe that a jury could understand, we conclude that they did so.

Judgment affirmed.

Costs to be paid by appellant.

APPENDIX

      . A land patent is defined as used in American law by Black’s Law Dictionary:

      “The instrument by which a state or government grants public lands to an individual.”

      . Socage tenure — “A species of tenure . . . whereby the tenant held certain lands in consideration of certain inferior services of husbandry to be performed by him to the Lord of the fee.” Black’s Law Dictionary.

      Serjeanty. “A species of tenure by knight service, which was due to the king only, and was distinguished into grand and petit serjeanty. The tenant holding by grand serjeanty was bound, instead of attending the king generally in his wars, to do some honorary service to the king in person, as to carry'his banner or sword, or to be his butler, champion, or other officer at his coronation. Petit serjeanty differed from grand serjeanty, in that the service rendered to the king was not of a personal nature, but consisted in rendering him annually some small implement of war, as a bow, sword, arrow, lance, or the like.” Black’s Law Dictionary.

      . in November, 1808 John Kilty, then register of the western shore land office, sent the Md. House of Delegates a “memorial” concerning his recently completed book The Landholder’s Assistant. He asked only that it “receive such public patronage as the work may merit.” A committee of three delegates reviewed the work, finding that the author had “performed a most laborious task” which “reflects great credit upon the memorialist.” They concluded that he justly made claim “to the liberality of the Legislature” and recommended that the general assembly “patronize a work of such merit and public utility.” Sixty-two copies were purchased with “unappropriated money in the treasury.” Laws of Md., 1808, Resol. #10; Proceedings from the House of Delegates, 1808 at 23.

      . The last governor under the Constitution of 1776. “When the [Civil] war began he took his way to the southland and there gave moral and material support to the Confederacy. If secession was rebellion, then he was one of the most violent rebels who came out of Md.; and the final defeat of the southern cause brought a sorrow to his heart which never thereafter left it.” H. Buchholz, Governors of Maryland (1908). -

      . A constitutional office abolished in most counties by vote of the people in 1972 as was the position of Commissioner of the Land Office in 1966. The latter’s duties have now been assumed by the State Archivist. Md. Code, Art. 21, § 13-103 (now Real Prop. Art., § 13-103).

      . An English, proverb more appropriately espoused by Cotgrove s, v, Gearre in 1611 as “No land without warre: he that hath land is seldome out of law.”

      . Although Betty Curry is also an appellee as Trustee for the Curry Lumber Company, her interest will rise or fall with the Eckharts’ title. The interests of the appellee, Gerrard Company, are coincident with the Eckharts who own it.

      . Cunningham becomes even more explicit at pages 324-325:
      “According to the known and long established principles upon which public lands may be acquired by an individual from the State, the title commences with the designation of the tract by the purchaser. After the date of the designation, and before a grant has been issued, the title is inchoative, and imperfect; but when a grant has been obtained, the title is then absolute and complete. A sufficient description of the land intended to be secured gives an incipient title against every person who has not before taken some method to secure the same land. Land Ho. Ass. 461. It is held, upon common law principles, that the grant relates back to the date of the specification; and, by a kind of jus postliminii, the purchaser is deemed to have had a perfect legal title from that period to all intents and purposes whatever. 3 Blac. Com. 210. He may maintain an action of trespass for any injury done to the land within that interval of time; Chapline v. Harvey, 3 H & McH. 396; and he may, in that interval, if he has paid the whole caution money, obtain a warrant of resurvey, which is only incident to a legal title, and cannot be founded upon a mere equitable right of any kind. Land Ho. Ass. 152, 149, 420, 427, 447, 455. On the death intestate of the holder of such an imperfect legal title, the right decends to his heirs, as real estate, to whom alone the patent can be granted. This doctrine of relation is founded upon principles of common law altogether and exclusively . . . .”

      . It is conceivable that appellant’s predecessor in 1870 was not aware of the dating back law and failed to appear at the caveat hearing in 1870, relying upon the issuance of a patent upon the 1870 resurvey as predating the 1874 issuance of the 1848 patent, to the petitioner’s daughter.

      . That section was, however, repealed and re-enacted with amendments as Cts. and Jud. Proc. Art., § 10-909 by Chap. 2 of the 1st Sp. Sess., Acts of 1973, applicable “to all proceedings commenced after December 31, 1973, and so far as practicable to all proceedings then pending. If a court determines that it is not practicable to apply a provision of the Cts. and Jud. Proc. Art. to a proceeding pending on January 1, 1974, then that proceeding shall be concluded under the pertinent statutory provisions in effect on December 31, 1973.” The new section incorporated sections 11 and 33 of Art. 75 and made other changes in both language and style. It now reads:
      “(a) Description in action at law. — Patented land is not required to be stated by the patented name in a declaration in an action at law. It may be described by abuttals, course and distance, or a name by which it was acquired. The description shall be certain enough to identify the land.
      (b) Proof required. — When title of patented land is questioned, a party is not required to prove that the land was patented. A patent shall be presumed in favor of the party showing a title otherwise good.
      (c) Acts of party. — Acts of exclusive user and ownership are admissible to prove possession. Actual evidence of enclosure is not necessary for this proof.”
      The case sub judice was commenced on January 12, 1972 and concluded below on May 23, 1974. The choice of Code section is of no consequence to the result reached.

      . Among the facts introduced by appellee was the existence of an old house built on one corner of the tract by appellee’s predecessors and that because of this possession, appellees had constructive possession of the entire Gerrard tract.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    WILLIAM LLOYD STURGIS, JR. v. STATE OF MARYLAND
    [No. 795,
    September Term, 1974.]

      Decided April 8, 1975.

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

      Gerald A. Kroop for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State’s Attorney for Howard County and Richard J. Wilkinson, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

William Lloyd Sturgis, Jr., appellant, was apprehended and charged with robbery with a deadly weapon. Sturgis was indicted by the grand jury for Howard County for the armed robbery and other related offenses. Apparently, as the result of the negotiations between an Assistant State’s Attorney and defense counsel, it was agreed that Sturgis would enter a plea of not guilty to the armed robbery charge, elect a court trial and submit on an agreed statement of facts. In exchange for Sturgis’s actions the State agreed to nol pros all of the other counts of the indictment and to refrain from making any recommendations to the trial judge with respect to sentencing. The case proceeded according to plan until the time of disposition. The State’s Attorney himself appeared and informed the court that he was going to deviate from the plea negotiations. He said in pertinent part:

“Mr. Kinlein [State’s Attorney]: . . . I’m going to deviate from the negotiations on the plea. I’m going to deviate because I think it’s important that I stand up here on behalf of the public I represent. And, notwithstanding any agreement to the contrary that I’m not a party to and not on notice of, I’m going to point out to the Court that armed robbery is the second most serious crime that’s outlined in Article 27, that the appropriate penalty is set forth by the General Assembly as being twenty years imprisonment, compared to, for instance, thirty years for second degree murder, and life imprisonment for first degree murder or rape. It has been projected to the Court that the defendant is scared. I would suspect that Mr. Willmer was extremely scared when confronted with a .38 automatic pistol.
Mr. Cocoros [Defense counsel]: ... I must object at this time. I think as part of the plea negotiations, Your Honor, the State had agreed to remain mute at disposition, Your Honor. Now, I know the State’s Attorney is now going to deviate, but I don’t know how he’s deviating. I don’t know if he’s going against the agreement and recommending incarceration, or whether he’s going, will support my plea for probation on behalf of Mr. Sturgis.
Mr. Kinlein: ... I’d offer him an opportunity to withdraw his plea. I’m not going, I’m not going to stand here and have recommended on the record that this man be placed on probation without an opportunity to dispute that.
The Court: Well, I think the question — would you pass me the docket entries again, please. Could I see the recommendation, gentlemen? Mr. Cocoros, I believe you have it on your desk.
The Court: All right, gentlemen, I just wanted to check the docket entries. Is there anything else you wish to say about this matter?
Mr. Kinlein: Yes, Your Honor. What I was about to say was that I believe that the question has been posed to the Court as to what incarceration would accomplish. I think that the principal thing that incarceration would accomplish is to begin to reinforce the integrity of the criminal justice system. The second thing that it would accomplish is the protection of the public, and I believe the public are entitled to have persons who commit armed robbery, after a long line of other minor crimes, to have them incarcerated. I believe that by reviewing Mr. Sturgis’ previous record, it’s obvious that he’s been dealt with lightly by the Court in the past, and would suggest that that could be the prinipal reason why he’s here today. I fail to see that association with controlled dangerous substances is a defense, but would rather suggest to the Court that it is an aggravating circumstance, and not one to be taken in mitigation. Your Honor, this is armed robbery, a .38 automatic directed towards the person of another human being, with the idea of relieving him of thirty-six dollars. Your Honor, this is the principal area of crime in the United States today, and it is the area that most people are concerned with, and until the courts and the State takes heavy action in cases like this, it’s going to continue to live in fear. That’s all that I have.
Mr. Cocoros: Of course, ... I’d object to the comments of the State’s Attorney, . . . and ask for a mistrial.
The Court: It’s not a question of trial now, gentlemen, it’s a question of sentencing, which as I think counsel will agree, is largely a matter for the Court, essentially, to decide. ...” (Emphasis supplied).

Defense counsel did not agree, however, and hence this appeal.

While the record in the instant case does not set forth the precise agreement reached between the State and the appellant, it does support a clear inference that an agreement was, in fact, achieved. The State’s Attorney’s avowed deviation from “any agreement to the contrary”, coupled with the appellant’s objection to the State’s breaching of its plea bargain,|underpins such an inference. This is particularly so when one considers that there was no denial by the State’s Attorney of defense counsel’s expression to the trial judge that there had been a plea bargain. It is patent from a reading of the above-quoted portions of the transcript that the agreement would pertain to the State’s making no recommendation relative to the trial judge’s imposition of sentence.

We observe from the record that appellant was sentenced on March 29,1974, and was ordered to be confined under the jurisdiction of the Division of Correction for a term of 14 years. That sentence was subsequently reduced on April 29, 1974, upon petition, to a term of seven years. Following the reduction of sentence the appellant filed a request on May 6, 1974 for a “Belated Appeal.” In his request the appellant alleged through counsel that although he desired to enter an appeal on April 29, 1974, the last day for doing so under Maryland Rule 1012, he was unable to perfect his appeal because he could not contact anyone in the Public Defender’s Office, nor could he locate the trial judge. On October 10, 1974, as the result of a post conviction proceeding, the appellant was granted the right to a belated appeal, and appellant then appealed to this Court.

The Supreme Court in Santobello v. New York, supra n. 1, the Court of Appeals of Maryland in Miller v. State, 272 Md. 249, 322 A. 2d 527 (1974), and this Court in Wynn v. State, 22 Md. App. 165, 322 A. 2d 564 (1974), all considered cases wherein there had been a negotiated plea of guilty and a subsequent breach of the agreement by the State. In each case the Court reversed. In Santobello the accused, in consideration of the prosecutor’s agreement “to make no recommendation as to sentence,” withdrew his plea of not guilty and entered a guilty plea to a lesser charge. At the time of sentencing “another prosecutor replaced the prosecutor who had negotiated the plea.” The new prosecutor recommended the maximum sentence. The defense counsel objected and argued that the government had entered into a plea bargain. The argument was cut short by the sentencing judge who answered that he was “not at all influenced by what the district attorney said.” Chief Justice Burger, writing for the majority declared:

“This phase of the process of criminal justice, [plea bargaining] and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Emphasis supplied).

After stating that the Court had “no reason to doubt” the sentencing judge’s declaration that he was not influenced by the prosecutor’s recommendation, the Chief Justice went on to say:

“Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.”

The Court of Appeals in Miller v. State, supra, dealt with a negotiated plea of guilty wherein the State agreed to make no recommendation to the sentencing judge. The Court of Appeals believed that such recommendation was, nevertheless, made and, speaking through Judge Eldridge, said:

“Most state and federal court decisions, both before and after Santobello, have held that where the defendant pleads guilty as part of a ‘plea bargain,’ and the prosecution breaches the agreement, the defendant should be allowed to withdraw his guilty plea. See, e.g., White v. Gaffney, 435 F. 2d 1241 (10th Cir. 1971); United States v. Graham, 325 F. 2d 922 (6th Cir. 1963); Zaffarano v. United States, 306 F. 2d 707 (9th Cir. 1962); People v. Barajas, [26 Cal. App. 3d 932, 103 Cal. Rptr. 405 (1972)]; Crossin v. State, 262 So. 2d 250 (Fla. 1972); People v. Caskey, 4 Ill. App. 3d 920, 282 N.E.2d 250 (1972); Wood v. Commonwealth, [469 S.W.2d 765 (Ky. 1971)]; People v. Bannan, 364 Mich. 471, 110 N.W.2d 673 (1961); State v. Wolske, 280 Minn. 465, 160 N.W.2d 146 (1968); State v. Hovis, 353 Mo. 602, 183 S.W.2d 147 (1944); People v. Farina, 2 App. Div. 2d 776, 154 N.Y.S.2d 501 (1956); aff'd 2 N.Y.2d 454, 141 N.E.2d 589, 161 N.Y.S.2d 88 (1957); Commonwealth v. Wilkins, 442 Pa. 524, 277 A. 2d 341 (1971); Darnell v. Timpani, 68 Wash. 2d 666, 414 P. 2d 782 (1966); State ex rel. Clancy v. Coiner, [154 W. Va. 857, 179 S.E.2d 726 (1971)]. See also ABA Project on Minimum Standards for Criminal Justice, Pleas of Guilty, § 2.1 (a) (ii) (4) (Approved Draft 1968); Note, Guilty Plea Bargaining: Compromises By Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 877 (1964); Note, The Legitimation of Plea Bargaining: Remedies for Broken Promises, 11 Am. Crim. L. Rev. 771, 792 (1973). The reason the defendant is usually permitted to withdraw his guilty plea, if that is his choice, was expressed by Mr. Justice Marshall in Santobello as follows (id. at 268):
“When a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea. This, it seems to me, provides the defendant ample justification for rescinding the plea. Where a promise is ‘unfulfilled,’ Brady v. United States, 397 U. S. 742, 755 (1970), specifically denies that the plea ‘must stand.’ ”
In our view, the better practice, and the one supported by the majority of cases, is to permit the defendant to withdraw the plea. Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated. On the other hand, if the defendant so desires, he may elect to leave the plea standing and be resentenced. As the Supreme Court stated in Santobello v. New York, supra, 404 U. S. at 263, the resentencing should be by a different judge.
It should be emphasized, however, that if a defendant under these circumstances desires to rescind the plea bargaining agreement and withdraw his guilty plea, he will have to plead anew to all of the original charges, including those which the State had nol prossed. Santobello v. New York, supra, 404 U. S. at 263, n. 2.”

Seven days before the decision in Miller, this Court, speaking through Judge Lowe, of a negotiated guilty plea wherein there was an alleged breach on the part of the State, poignantly observed in Wynn v. State, supra at 172 that:

“We cannot overlook the fact that a prosecutor has a profound obligation to society. If prior to the consummation of a plea bargain he foresees that it might endanger society, he has not merely the right, but the responsibility, to withdraw from the agreement.”

Judge Lowe further stated at 173:

“All foreseeable consequences of a plea bargain should be considered by counsel on behalf of society as earnestly as they are by counsel on behalf of a defendant. An attorney or for that matter anyone else, has very little to recommend him if faith is lost in his assurances that he will live by his word. Finally, at the time of performance, compliance with the agreement must be to the letter and in good faith. The State may not sell the cow and hope to continue to sup upon her milk.”

In the instant case we treat of a different creature than the guilty pleas present in Santobello, Miller and Wynn, supra. Here we deal with a negotiated plea of not guilty and trial upon a factual stipulation. While it could be argued that the Santobello, Miller, Wynn trilogy has no control over the present situation because of the absence of a guilty plea, we think such argument would be superficial. If the State is precluded from reneging upon its solemn word in the case of a negotiated guilty plea, we fail to see why the State’s promise is any less sacrosanct when, as here, it agrees to abstain from recommending sentence in exchange for a negotiated plea of not guilty, and a submission upon a statement of fact. We think the State’s word, be it given on a negotiated plea of guilty or under the circumstances present in this case, to be equally binding.

When the State’s Attorney appeared in court at the time of sentencing and unilaterally abrogated the Assistant State’s Attorney’s agreement with the appellant, he not only violated the spirit of Santobello, Miller and Wynn, and rendered valueless the State’s word, but he effectively eroded the accused’s trust in the integrity of the State. Because of the State’s Attorney’s disregard of the State’s vow to the appellant, we shall vacate the judgment of the Circuit Court and remand the matter for further proceedings not inconsistent with this opinion.

As a result of our remand the accused may, under Miller v. State, supra, follow the same procedure as suggested in that case and have sentence imposed by a different judge, or he may proceed to trial on the indictment. Of course, if he chooses the latter, the State may elect to try him on the nol prossed counts after obtaining new indictments.

The happenings in this case demonstrate that the better practice is that the record affirmatively demonstrate the existence of a plea bargain, and its terms. See People v. West, 3 Cal. 2d 595, 477 P. 2d 409, 91 Cal. Rptr. 385 (1970) (en banc) for possible methods of incorporating the bargain into the record.

Judgment vacated.

Case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid by Howard County.

      . It has been widely held that “One prosecutor is bound by the promises made by another prosecutor.” Note, The Legitimation of Plea Bargaining: Remedies for Broken Promises, 11 Am. Crim. L. Rev. 771, 784 (1973) (citing Santobello v. New York, 404 U. S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Carter, 454 F. 2d 426 (4th Cir. 1972); People v. Mitchell, 46 Ill. 2d 133, 262 N.E.2d 915 (1970).) Santobello states: “[T]he staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right is doing’ or has done.” 404 U. S. at 262.

      . Justices Douglas, White and Blackmun joined the Chief Justice. Justice Douglas also filed a separate concurring opinion. Justice Marshall concurred in part and dissented in part and was joined therein by Justices Brennan and Stewart.

      . A simple plea of guilty is not the only form of a negotiated plea a defendant may make. See, e.g., Commonwealth v. Marsh, 448 Pa. 292, 293 A. 2d 57 (1972) (promise to forego further appeals); People v. White, 116 Ill. App. 2d 180, 253 N.E.2d 654 (1969) (waiver of jury trial); People v. Wadkins, 63 Cal. 2d 110, 403 P. 2d 429, 45 Cal. Rptr. 173 (1965) (en banc) (active participation in solving bank robbery); Commonwealth v. Todd, 186 Pa. Super. 272, 142 A. 2d 174 (1958) (promise to testify as State’s witness). See generally Note, The Legitimation of Plea Bargaining, supra n.1.

      . The latter two eases were not decided as of the date of the trial in the instant case.

      . The Court in Miller, supra, patently followed the suggested procedure on remand as advanced by Mr. Justice Douglas, concurring, in Santobello, supra at 267.

      . The four methods are: “(1) the bargain could be stated orally and recorded by the court reporter, whose notes then must be preserved or transcribed; (2) the bargain could be set forth by the clerk in the minutes of the court; (3) the parties could file a written stipulation stating the terms of the bargain; (4) finally, counsel or the court itself may find it useful to prepare and utilize forms for the recordation of plea bargains.”


author: Murphy, J.,

text:
    MARY M. GARDNER et al. v. JAMES E. GARDNER et al.
    [No. 728,
    September Term, 1974.]

      Decided April 9, 1975.

      The cause was argued before Orth, C. J., and Mason, J., and Robert C. Murphy, Chief Judge of the Court of Appeals, specially assigned.

      Paul L. Wilkins for appellants.

      James E. Thompson, Jr., and Phillips L. Goldsborough, III, with whom was Robert F. Price on the brief, for appellees.
   Murphy, J.,

delivered the opinion of the Court.

By a deed dated April 13, 1945, B. Clay Coppage and his wife conveyed a 408-acre farm to James E. Gardner and his son, Irvin T. Gardner. The granting and habendum clauses recited that the property was granted and conveyed to the Gardners, as parties of the second part, “their heirs and assigns, forever and unto the survivor of them the said parties of the second part and unto the heirs and assigns of the survivor of them.” In the same deed, the Gardners jointly and severally agreed to assume two mortgages of the Coppages which encumbered the property.

On December 19, 1969, Irvin died intestate; on November 13, 1970, his widow and children (the appellants) filed a bill of complaint in the Circuit Court for Queen Anne’s County against James and his wife (the appellees), seeking partition or sale of the farm property and an accounting of proceeds from the sale of farm products and timber. The bill alleged that James and Irvin had purchased the farm as tenants in common and that since its acquisition, the property “had been managed and operated for the mutual benefit” of Mr. and Mrs. James Gardner and Mr. and Mrs. Irvin Gardner “on a partnership basis.” The appellees demurred to the bill, claiming that the 1945 deed disclosed on its face that it created a joint tenancy and not a tenancy in common; that upon Irvin’s death, title to the farm vested in James as the survivor; and that the appellants were therefore not entitled to a partition or an accounting. On January 14, 1971, in a manner not disclosed by the record, a copy of the deed was filed in the proceedings, following which Judge B. Hackett Turner sustained appellees’ demurrer without leave to amend. The court thereafter granted appellants’ motion for rehearing on the demurrer. On February 25, 1971, appellees, pursuant to Maryland Rule 326, demanded production of the deed, which was ordered over appellants’ objection. On April 16, 1971, appellees withdrew their demurrer and filed an answer, contending that the deed created a joint tenancy, that the farm was operated as a joint tenancy, and that a partnership never existed. Appellees further alleged that James, as sole owner of the property, was under no obligation to account for profits from the farm and could sell it without appellants’ consent. On February 1, 1973, another hearing was held before Judge Turner; at that time, appellants contended that the deed was ambiguous, and they proffered parol evidence to show that it was the intention of James and Irvin to establish a tenancy in common when they acquired the land; in addition, appellants maintained that the assumption of mortgages by the Gardners at the time of the conveyance destroyed any joint tenancy which may have been created. After another copy of the deed was introduced in the proceedings, Judge Turner declined to receive the proffered evidence; he concluded that the granting clause of the deed established a joint tenancy with the right of survivorship and ordered further argument on the question whether the Gardners’ assumption of the mortgages destroyed the joint tenancy. On October 19, 1973, appellants filed an amended bill of complaint, making the following additional allegations:

“. . . that the intentions of the parties was to hold as tenants in common and further that the way and manner in which the parties dealt with the property destroyed the joint tenancy, if any; that the reference to survivorship in the granting and habendum clauses was either an accident or mistake as it was not the intention of the parties to hold as joint tenants.”

Appellees demurred to the amended complaint, stating:

“(1) In order to hear evidence regarding the first new allegation the Court would be considering parol evidence to vary and contradict the terms of the deed without any allegation of fraud, accident or mistake.
(2) That the second new allegation is insufficient in law in that it neither alleges a failure of one of the four unities necessary for joint tenancy nor does it allege FACTS which, if proved, would permit the Court to find a failure of one or more of the four unities.”

Appellants thereafter filed a motion ne recipiatur to the demurrer, claiming that accident or mistake had been alleged, that the bill of complaint did not have to set out facts in detail, and that their allegation that the property was operated on a partnership basis, if proven, would destroy joint tenancy.

On January 30, 1974, Judge Turner denied appellants’ motion ne recipiatur and sustained appellees’ demurrer without leave to amend. The court found that the deed was not ambiguous, that it created a joint tenancy on its face, and that title to the property vested in James as the survivor. It said:

“The Amended Bill of Complaint in this case fails to aver the facts necessary with certainty and positiveness to entitle Complainants to relief. Facts must be set out, not mere conclusions of the pleader that we have here. The averments in the Bill of Complaint here are apparently upon information and belief without any statement as to the cause of such belief; and are insufficient to support the cause of action.
“In view of the fact that the Court considers the deed to create a joint tenancy, parol evidence could not be admitted to vary or contradict the terms of the deed without proper allegations of fraud, accident or mistake. Mere conclusions of the pleader that there was found accident or mistake would not be sufficient to enable the Court to grant relief.”
“To obtain the relief Complainants seek, and to which they feel entitled, an action to reform the deed should have been instituted. However, in such an action, the Complainants would have to prove their case by a preponderance of evidence; not only would a mutual mistake have to be shown, but the precise agreement which the parties intended but failed to express would have to be proven beyond a reasonable doubt under the law in Maryland . . . .”

On appeal from the decree entered by the court below, appellants contend that the lower court erred in concluding that the deed created a joint tenancy. It is true, of course, that joint tenancies are not favored either legislatively or judicially in Maryland. See Alexander v. Boyer, 253 Md. 511, 253 A. 2d 359 (1969); Register of Wills v. Madine, 242 Md. 437, 219 A. 2d 245 (1966). But they are permitted in this State, Alexander v. Boyer, supra, 253 Md. at 519, and draftsmen need not go to extraordinary lengths to create a joint tenancy. 2 American Law of Property § 6.3 (A. J. Casner ed. 1952). The principal characteristic or chief incident of a joint tenancy is the right of survivorship, 2 H. Tiffany, Real Property § 419 (3rd ed. 1939), and the inclusion of such a right in a deed is a clear indication of an intention to create a joint tenancy, Michael v. Lucas, 152 Md. 512, 137 A. 287 (1927). See also Lopez v. Lopez, 250 Md. 491, 243 A. 2d 588 (1968). While Maryland Code (1974) Real Property Article, § 2-117 specifies that to create an estate in joint tenancy the instrument should expressly so provide, the words “joint tenants” or “joint tenancy” need not be used; the statutory requirement is only one of clear manifestation or intention, and not of particular words. Michael v. Lucas, supra; Boyd v. Boyd, 24 Md. App. 497, 332 A. 2d 328 (1975).

Notwithstanding the inclusion in the deed of the phrase “unto the survivor of them . . . and unto the heirs and assigns of the survivor of them,” appellants argue that the prior use of the words “heirs and assigns” following the names of the grantees renders the clause contradictory and ambiguous, a defect which they claim must be construed strongly against appellees in view of § 2-117 and the Maryland cases. Specifically, appellants argue in their brief:

“The first part of the granting clause granted and conveyed to the two Gardners and their heirs and assigns forever. This is contradicted by the balance of the granting clause which attempts to establish a survivorship and unto the heirs and assigns of the survivor of them. Had the granting clause said ‘to the said James E. Gardner and Irvin T. Gardner, their assigns and unto the survivor of them, the said parties of the second part and unto the heirs and assigns of the survivor of them,’ it would not have been contradictory. But where in the first instance you grant and convey unto the parties of the second part their heirs and assigns, you cannot then in the same clause take away from the grantees and give to the heirs and assigns of the survivor.”

We agree with the lower court that no ambiguity exists by reason of the particular placement of the words “heirs and assigns” in the deed; the words are merely descriptive of the estate conveyed — a fee simple. According to 26 C.J.S. Deeds § 124 (1956):

“The term ‘heirs’ is a technical term, clothed in the law of real property with a special significance. It may, however, be used in a deed as a word of limitation or as a word of purchase, according to the grantor’s intent, which is to be determined from an examination of the entire instrument. When used technically the term ‘heirs’ is one of limitation, and unless an intention to the contrary appears, it will be presumed to have been used in its technical sense as a word of limitation.”

To like effect, see Lobe v. Goldheim, 153 Md. 248, 138 A. 5 (1927). The addition of the term “assigns” does not alter this conclusion. The words “heirs and assigns,” as one New York court has noted,

“are the usual technical words of conveyance granting a title in fee simple. At common law they were essential to the conveyance. They are unnecessary for that or any purpose . . . but when used in wills or deeds such is their meaning. They are merely words of limitation used to describe the nature of the estate given . . . .”
In re Denari’s Will, 165 Misc. 450, 300 N.Y.S. 1279, 1283 (1937).

Accord Glotzbach v. Kneessi, 73 App. D. C. 282, 121 F. 2d 30 (1941); Morgan v. Johnson, 106 F. 452 (8th Cir. 1901); In re Witte’s Estate, 102 Pa. Super. 535, 157 A. 328 (1931); In re Johnson’s Estate, 199 Wis. 154, 225 N. W. 818 (1929).

Thus, in Craft v. Wilcox, 4 Gill. 505 (1846), a conveyance to “Henry Wilcox and wife, and their heirs and assigns, and the survivor of them” (although not creating a joint tenancy) was held to establish a right of survivorship. In Wolf v. Johnson, 157 Md. 112, 145 A. 363 (1929), a deed granting property to a husband and wife “as joint tenants, their heirs and assigns in fee simple” to have and to hold “as joint tenants with the common law right of survivorship” was held to create a joint tenancy. In Marburg v. Cole, 49 Md. 402 (1878), a conveyance to “Ann Rebecca Cole and Abraham Cole, the husband, their heirs and assigns, in fee” was said not to create a tenancy in common but rather to establish a tenancy by the entireties with a right of survivorship.

We thus conclude that it was the intention of the parties, plainly expressed in the language of the deed itself, to hold the purchased property jointly, with right of survivorship.

Appellants next contend that the assumption of the two mortgages by the Gardners in 1945 destroyed the unity of title essential to a joint tenancy. They rely on Register of Wills v. Madine, supra, for the proposition that since a conveyance of legal title by all the joint tenants destroys the joint tenancy in the property conveyed, a similar result is mandated for a joint assumption of mortgages. Madine held, in effect, that joint tenants who conveyed their land to the State by a fully executed deed ceased to own the property as joint tenants but held bare legal title as trustees for the State which owed them the purchase price for the property as tenants in common. In the present case, however, no such drastic curtailment of the jointly held interest obtains by reason of the joint assumption of the mortgages on the property. In a note appearing at 64 A.L.R.2d 918, 935 (1959), it is said:

“There appears to be no basis at all for supposing that the mere act of both or all of the joint tenants in executing a mortgage on the joint property will sever the joint tenancy; moreover, no ruling on that question has been found.”

Similarly, in 20 Am.Jur.2d Cotenancy and Joint Ownership § 17 (1965), it is noted that “[i]t has also been recognized or assumed that a mortgage of the jointly owned property by both or all joint tenants will not sever the joint tenancy.” And, in Illinois Public Aid Commission v. Stille, 14 Ill. 2d 344, 153 N.E.2d 59, 63-64 (1958), the Supreme Court of Illinois said:

“Where both joint tenants join in the Mortgage . . . it has generally been assumed that there is no severance and that when the mortgage is released, the joint tenancy continues unimpaired.”

Thus, we conclude that the joint assumption of mortgages by the Gardners did not destroy the joint tenancy.

Appellants say that the trial court erred in considering the provisions in the deed itself in ruling on appellees’ demurrer. We disagree. Because appellants’ basic allegation that James and Irvin held the property as tenants in common was grounded in the deed, it was proper for appellees to demand its production pursuant to Maryland Rule 326 and have it treated as if incorporated into the pleading. See Home Indemnity v. Basiliko, 245 Md. 412, 226 A. 2d 258 (1967). In view of what we have held, appellants’ allegations that the farm was managed and operated on a partnership basis and that it was the intention of the parties to hold the property as tenants in common, even if factual, rather than conclusory, could not change the result. Thus, we hold that the lower court did not err in sustaining the demurrer to appellants’ amended bill of complaint or in denying leave to amend.

In view of our holding that the deed created a joint tenancy, we conclude that the lower court correctly excluded parol evidence relating to the intention of the parties as to the tenancy and to the manner in which the property was managed. See Mullins v. Ray, 232 Md. 596, 194 A. 2d 806 (1963).

Decree affirmed; costs to be paid by appellants.

      . Section 2-137 provides that:
      “No deed, will, or other written instrument which affects land or personal property, creates an estate in joint tenancy, unless the deed, will, or other written instrument expressly provides that the property granted is to be held in joint tenancy.”
      In 1945, when the Gardner deed was executed, this provision was basically the same. Code (1939), Art. 50, § 14.

      . The characteristics of a joint tenancy are its four unities; viz., the unities of interest, title, time and possession. These must coincide if any is lacking, the estate cannot be one of joint tenancy. The destruction of one or more of the four unities severs and destroys the joint tenancy and this may be done by a conveyance, voluntary or involuntary, of the interest of one of the joint tenants. A joint tenant may convey his interest by deed, and the result is a severance of the joint tenancy and the creation of a tenancy in common between the grantee and the surviving joint tenant or tenants. Thus, a joint tenancy will be destroyed where one of the joint tenants mortgages his interest. Eder v. Rothamel, 202 Md. 189, 95 A. 2d 860 (1952).

      . Rule 326 provides:
      “Where any cause of action or defense is founded upon a written instrument, any party shall, upon written demand of the opposite party served upon him within the time allowed for pleading, file in the proceedings such instruments or a true or photostatic copy thereof, which, when filed, shall be treated as if incorporated in the pleading. The time for pleading shall be extended until fifteen days after the filing of such instrument or copy.”


author: Lowe, J.,

text:
    PETER PAUL OLIVER v. STATE OF MARYLAND
    [No. 801,
    September Term, 1974.]

      Decided April 9, 1975.

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

      John W. Sause, Jr., District Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Donaldson C. Cole, Jr., State's Attorney for Cecil County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The facts leading to the conviction of Peter Paul Oliver by a jury in the Circuit Court for Cecil County are of little consequence to this appeal. His conviction of daytime housebreaking and petit larceny is of major consequence, however, as is his burglary exoneration, if to a lesser degree. We are concerned here with two advisory instructions — one by the judge to the deadlocked jury, the other by the bailiff in response to a question presented by its foreman. We will treat the issues inversely, first disposing of the bailiff’s instruction, and reserving for last that of the judge, in deference to processional protocol.

The Bailiff’s Mistake

From a most sparse record, it would seem that during jury deliberations the bailiff was called upon by the foreman to “deliver a message that he gave me.” Whether the “message” was the question that followed we are not told. It is clear, however, that the foreman did ask the bailiff a question of a technical legal nature. The bailiff explained the incident immediately after the jury verdict but prior to their dismissal.

“A. He wanted to know what was the difference between illegal entering and breaking and entering.
Q. Did you answer?
A. I did. I told him I didn’t know whether there was any difference or not.
Q. And what did you tell him you thought?
A. I said I thought there wasn’t any difference at all. That’s what I said.”

It seems hardly necessary to discuss whether the questionable advice was correct or in error. The impropriety of the bailiff’s having breached the quarantine of a juror’s deliberations, and possibly contaminating that sterile atmosphere is cause enough to bowdlerize the intrusion. As pointed out by the trial judge, had appellant brought this to the court’s attention before the final verdict, the peregrine might have been extruded far more efficiently than by having to grant a new trial:

“Now, apparently Counsel was aware of this, I suppose, when it happened; certainly before the Foreman announced the verdict, and Counsel should have advised the Court immediately when he learned that this had happened and brought it to the Court’s attention then, and then action necessary could have been taken. It seems to me that Counsel waited too long and any right that he had to raise this point he waived by not bringing it immediately to the Court’s attention. And under the rule, there’s a rule, I can’t cite the rule, but I know there is a rule which so requires anyone having knowledge of any impropriety, that it be immediately made known to the Court.”

Yet we are not willing to “suppose” as did the trial judge that appellant or his counsel was aware of the communication before the verdict when such supposition was necessary to the court’s conclusion that “There’s nothing prejudicial...” to the accused. Nor can we find appellant’s supposed hesitancy in enlightening the court as effecting a waiver of his protected right, especially in the face of possible prejudice.

In Parker v. Gladden, 385 U. S. 363 a bailiff commented upon the guilt of an accused and speculated that an appellate court would correct any error in a guilty verdict. The Supreme Court placed considerable emphasis upon “the fact that the official character of the bailiff — as an officer of the court as well as the State — beyond question carries great weight with a jury which he had been shepherding . . . .” Parker, supra, at 365.

The nature of the advice given weight by the custodial status of the bailiff shifted the burden to the State to exorcise the spectre of prejudice raised by the revelation of the remark. We think that is especially true in light of the strong differences among the jurors indicated by their deadlock. Parker, supra, at 365 noted that this factor is also an element to consider. In that case “the jurors deliberated for 26 hours, indicating a difference among them as to the guilt of [the accused].” We find ourselves in close accord with the sentiments twice expressed by the Supreme Court:

“As we said in Turner v. Louisiana, ‘it would be blinking reality not to recognize the extreme prejudice inherent’ in such statements . . . .” Id.

“It is impossible to keep the fountains of justice clean and pure, unless the jury is free from contamination.” Shackleford v. Commonwealth, 185 Ky. 51, quoted in Anno., 41 A.L.R.2d 227, 229.

The Judge’s Error

The jury’s deadlock brings us to the second question raised by appellant dealing with the court’s “Allen Charge.” Not only do we find ourselves critical of the bailiff’s advice to the foreman, but we are equally concerned with that given the jury when it returned after less than one and one-half hours of deliberation. A colloquy between court and foreman indicated a deadlock which the foreman stated could not be broken with further consideration and deliberation. Thrice he repeated such opinion. For the fourth and final time the court asked:

“THE COURT: Do you want to try a little longer and see what can happen?”

Whereupon the foreman once again replied:

“I really don’t think it would do any good. We’re deadlocked.
THE COURT: You don’t think it would do any good. Well, this is rather surprising to the Court. I will say that. Well, under the circumstances, I suppose there’s nothing we can do. I understand from the note that you’re pretty well evenly divided.
THE FOREMAN: Yes, sir.
THE COURT: Counsel, come to the Bench.
(Whereupon, a conference took place at the Bench, out of hearing of the jury.)”

Instead of declaring a mistrial, the court took the “Allen” route:

“THE COURT: Ladies and gentlemen of the jury, I am going to send you back another half hour and let you talk this over and see what you can do, because it’s difficult for me to see how, on the issues of this case, you can’t come to some sort of agreement on it. I am going to send you back for another half hour and see what you can do to it.
You have got a responsibility and a duty, and this case has been a day and a half. Now, it’s expensive. We try to conclude these things if we can. This would mean this trial in the case — it means it’s got to be tried all over again. We’ll have to get all these witnesses back and have the same thing.
The Court would ask you to go in and see if you can’t sit down and reason this thing out. Discuss the facts. See if you can come to an agreement on what the facts are and apply the law as the Court has instructed you, and see if you can’t come in here with a verdict on this case. Now, return to the jury room.”

A trial judge cannot be too careful when delivering what has been termed a “dynamite charge... designed to blast loose a deadlocked jury.” Green v. United States, 309 F. 2d 852 (5th Cir.). Although this Court has not gone to the extent of saying that there “is small, if any justification for its use” as did Green, supra, we have repeatedly admonished that “it should be resorted to with care, restraint, and circumspection.” Miller v. State, 10 Md. App. 157, 160.

The giving of the charge is a matter within the sound discretion of the presiding judge, Fletcher v. State, 8 Md. App. 153, 155, after remand, Hamilton v. State, 12 Md. App. 91, aff’d. 265 Md. 256. In determining whether that discretion was abused we must decide:

“. .. whether the wording of the charge and the time, circumstances and conditions under which it is given would threaten or tend to coerce the jury into a verdict which is contrary to any individual juror’s free will and judgment.... The question to be determined is whether resort to the instruction forced or helped to force an agreement which would not otherwise have been reached except for the intimidating or coercive effect of the charge upon some jurors or whether it merely initiated a new train of real deliberation which ended the disagreement and enabled each juror conscientiously and fully to subscribe to the unanimous verdict.” Id. at 155-156.

Parenthetically we should interject our observation that time is but one factor to consider in determining abuse, Cf., Lang v. State, 6 Md. App. 128, cert. denied, 254 Md. 719. Conversely, we noted in Fletcher that the single factor of having deliberated for one hour and five minutes did not by itself justify “returning [the jurors] to the court room and giving an Allen charge.” 8 Md. App. at 158. Indeed, we decided that the instruction in Fletcher was “clearly premature and we cannot say that its use was unprejudicial.” 8 Md. App. at 159.

While the time comparison here is significant, it is not alone compelling under the circumstances: a) that the jury came forward to explain its deadlock as opposed to being recalled by the judge; and b) that the facts of this case lacked serious complexity.

Of greater concern we think is “the wording of the charge,” and again by comparison with Fletcher, the wording used here is found wanting. Appellee contends that the “circumstances and conditions” indicate that it was not coercive. It argues that the court’s limiting the return of the jury to “another half hour” lessens the coercive impact. The State then notes that at the end of that time they did indeed come back and ask for a few minutes more. Ten minutes thereafter they arrived at a verdict. This sequence, interpreted by appellee, would show the judge’s “suggestion” that the jurors try a little longer was met with so cooperative a spirit (thus negating a sense of coercion) that they even communicated their progress by keeping him advised that they would only be a few minutes more.

More ominously viewed from the opposite trial table, the words as well as the “conditions and circumstances attendant” were coldly received. Initially the appellant notes the peculiar circumstance that at 1:00 p.m. no lunch had been served the jury, nor were they so provided before again being caused to retire. The half hour limitation is viewed as a deadline auguring foreboding consequences made more apparent by the bypass of the noon meal. They were given just 30 minutes to meet their “responsibility and duty” to keep the trial from “being tried all over again” for a “day and a half” at which time “We’ll have to get all these witnesses back and have the same thing. . . .” They were not asked, says appellant, they were cajoled to “discuss the facts. See if you can come to an agreement on what the facts are and apply the law as the Court has instructed you, and see if you can’t come in here with a verdict on this case.” And finally they were ordered “Now, return to your jury room.” The appellant would further note that the circumstances of their request through the bailiff after the lapse of 29 minutes of their allotted 30, that “They want a few more minutes” is indicative of their Pavlovian response to the precise words judicially imparted. Satisfied that he had broken the deadlock, says appellant, the judge at last eased his time limitation and told the bailiff:

“Well, apparently, they are making progress. Tell them to take all the time they want.”

Neither interpretation do we accept, yet the conflict is indicative of the possible coercive impact of the trial court’s unfortunate choice of words.

“The jury system rests in good part on the assumption that the jurors should deliberate patiently and long, if necessary, and arrive at a verdict — if, but only if, they can do so conscientiously. It is improper for the court to interfere with the jury by pressuring a minority of the jurors to sacrifice their conscientious scruples for the sake of reaching agreement.” Green v. United States, supra, 309 F. 2d at 854.

Since we have concluded that the bailiffs legal advice to the foreman of a deadlocked jury was reversible error, we are relieved from deciding whether the Allen-type charge given would itself constitute such abuse of discretion as to independently warrant reversal. We have analyzed the charge in order to caution the trial judge should the retrial result in jurors with similarly differing opinions.

In Kelly v. State, 16 Md. App. 533, affm’d. 270 Md. 139, 142 the Court of Appeals declined “to imprison the trial judges of this State within the walls of foreordained verbiage.” However, Judge Digges wrote for the Court “guidelines for the employment of the Allen-type charge.” 270 Md. at 143. In so sensitive a semantic minefield we commend the periodic rereading of Kelly by the trial bench.

Because the bailiffs legal advice was improper, the judge’s instruction suspect and significant facts in controversy,

Judgments reversed and case remanded for a new trial.

      . It is the bailiff himself who is responsible for the sanetity of the jury deliberations. Form Number 23 of the Rules of the Second Judicial Circuit provides that the bailiff take a special oath relative to that responsibility and addresses him personally in that regard:
      “Do you solemnly promise and declare (or affirm) under the penalty of perjury that you will well and truly keep this jury together in some convenient room, without meat or drink; that you will not suffer any person to speak to them nor speak to them yourself, unless it be to ask them whether they are agreed upon their verdict, without leave of the Court?” [Emphasis supplied].

      . We too are unable to cite such rule.

      . The leadership status of the recipient of the remark — here, the foreman, — is neither insignificant nor to be ignored.

      . Allen v. United States, 164 U. S. 492.

      . The charge found prejudicial in Fletcher was:
      “THE COURT: Mr. Foreman, Members of the jury, the Court observes that you have had this case under consideration now for about an hour and a half. We do not feel that there is anything technical to be decided here. It’s a question of arriving at a judgment. For that reason we instruct you that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his own convictions and not a mere acquiescence in the conclusions of his fellows, each one of you should examine the questions submitted with candor and with a proper regard and deference to the opinion of the others.
      “It is your duty to decide this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other’s arguments. If your views are contrary to those of the vast majority, you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.
      “So you will return to the jury room and deliberate further in light of these instructions.” Fletcher, 8 Md. App. at 154-155.

      . Fletcher, 8 Md. App. at 155 says that “. . . whether the giving of the instruction constitutes reversible error in a given case depends not only on the language used but upon the conditions and circumstances attendant under which the instruction is given.”