author: O’Donnell, J.,

text:
    CARMELA DiTOMMASI v. ADRIAN DiTOMMASI
    [No. 703,
    September Term, 1974.]

      Decided June 26, 1975.

      The cause was argued before Morton and Gilbert, JJ., and William J. O’Donnell, Associate Judge of the Court of Appeals, specially assigned.

      Townes L. Dawson for appellant.
    Submitted on brief by Lloyd E. James, Sr., for appellee.
   O’Donnell, J.,

delivered the opinion of the Court.

On November 3, 1964 the appellee, Adrian DiTommasi, and the appellant, Carmela DiTommasi, then husband and wife, acquired, as tenants by the entireties, for their domicile, the real property located at 1902 Callaway Street in Hillcrest Heights, Prince George’s County, Maryland.

Following irreconcilable matrimonial differences the appellee vacated the home on or about November 23, 1966. When, on June 5, 1973, the parties were divorced a vinculo matrimonii by a decree of the Circuit Court for Prince George’s County, the estate that they held by the entireties was converted into a tenancy in common. See Meyers v. East End Loan & Savings Ass’n, 139 Md. 607, 612, 116 A. 453, 455 (1922); Reed v. Reed, 109 Md. 690, 696, 72 A. 414, 416 (1909).

Unable to reach an agreement as to the disposition of the property, where the appellant continued to reside and since concededly it could not be partitioned, the appellee filed a bill of complaint in the Circuit Court for Prince George’s County praying that that court decree the sale of the premises and divide the proceeds among the parties according to their respective rights. See Maryland Code (1974), Real Property Article § 14-107 (a). American Federal Savings and Loan Association, to which the parties were indebted under a deed of trust, was joined as a party in accordance with the provisions of § 14-107 (d).

Opposing such a sale, the appellant defended the action by asserting that her former spouse had made an oral gift of the property to her, was estopped from asserting his interest as a tenant in common therein and that she was nonetheless entitled to reimbursement from him not only for the contribution she made toward the purchase, but for those payments subsequently made by her on account of the interest and principal due American Federal, for taxes, insurance and for improvements made.

Following an evidentiary hearing, the chancellor (Ralph W. Powers, C. J.) filed an opinion in which he found that the appellant had not met her burden, by a preponderance of the evidence, of establishing a donative intent on the part of the appellee; that the complainant was not estopped to assert his interest in the property; and that although he was responsible for contribution for certain specified improvements made to the property by the appellant, she was not entitled to reimbursement of the moneys she had contributed toward the purchase of the property, nor for the payments she made by way of taxes, insurance and principal and interest under the deed of trust. From a decree ordering the sale of the property and appointing cotrustees to make such sale, and from rulings limiting the amounts to be credited to the appellant by the auditor in his statement of account to be filed with the court, the appellant appealed, contending as she had in the trial court, that: (a) the appellee had made an oral gift of the house to her; (b) that he was estopped from asserting his interest in the title to the property; and (c) that the trial court erroneously limited the items for which she was entitled to contribution from him.

(a) and (b)

Since the issues of whether the appellee made a parol gift of his interest in the property and was estopped from asserting his title thereto are so inexorably here intertwined we shall discuss them together.

Carmela DiTommasi testified that when her former spouse departed the premises on November 22, 1966 — as well as on several later occasions when he returned thereto to recoup some of his personal effects — he had told her that “He didn’t want the house, that she could keep it,” and that “you can have the house.” She dramatically recalled one occasion, when the appellee had had her arrested (apparently for assault) and while she was being escorted by the police, he told her: “ ‘You stole the house and I don’t want it.’ ” She also testified that she had earlier given him a boat, that he told her “ ‘You can have the boat too’ ” and that “ ‘He says he give it to me, but he take it [away].’ ” This evidence was buttressed by the testimony of two of the appellant’s daughters (Adrian’s stepchildren), both of whom resided at the premises at the time of separation, that the appellee, following an argument “around Thanksgiving [1966],” stated that “He didn’t want anything to do with the house it belonged to [their] mother.” One of the stepdaughters testified that this disavowal of any interest in the property was repeated on an occasion when her stepfather returned to claim some personal belongings.

A neighbor and confidante of the appellant — who spoke no English — testified through an interpreter that there had been repeated arguments and statements between the parties concerning the house and that on one such occasion, several days after Thanksgiving, 1966, she heard Adrian tell Carmela that “He didn’t want anything to do with the house.”

A mutual friend of the principals, since 1960, was the fifth witness to give cumulative testimony on this point. She testified that she had overheard an argument, in September 1966, when Adrian stated, “ T don’t give a damn . . . you can have this house ... it don’t belong to me.’ ” The witness conceded, however, when asked if she knew that Mr. and Mrs. DiTommasi had separated, that “I don’t know too much about their business.”

Adrian DiTommasi contradicted the appellant’s witnesses at virtually “every turn”; he emphatically denied ever having made such statements concerning the disposition of the property, contended that he had returned to the premises only twice — on which occasions he admitted himself with his own key — and not on five or six occasions as described by one of the stepdaughters and that on one of his visits, approximately ten days after November 23, 1966, the appellant had had him arrested for nonsupport.

From this plethora of parol evidence versus the appellee’s uncorroborated denial and, specifying purported discrepancies in the appellee’s testimony, the appellant argues that the chancellor erroneously found that there had been no gift of Adrian DiTommasi’s interest in the property.

Judge Powers, in finding that the appellant had not sustained her burden, by a preponderance of the evidence, of establishing a donative intent on the jpart of Adrian DiTommasi, pointed out that in order to make a valid gift inter vivos, there must be a clear intention on the part of the donor to transfer gratuitously t.itle to the property, and also a delivery by the donor and an acceptance by the donee, and that it is essential that the transfer of both possession and title shall be absolute and shall go into immediate effect. See Rogers v. Rogers, 271 Md. 603, 319 A. 2d 119 (1974); Geisler v. Eminizer, 240 Md. 72, 212 A. 2d 734 (1965); Berman v. Leckner, 193 Md. 177, 66 A. 2d 392 (1949); First Nat’l Bk. v. Thomas, 151 Md. 241, 134 A. 210 (1926). See also Urquhart v. Alexander & Alexander, Inc., 218 Md. 405, 414-15, 147 A. 2d 213, 219 (1958), cited by the chancellor, that evidence of a gift, although it may be proved by parol, “the evidence thereof must be clear and convi .icing.”

Her argument as to this facet of the case overlooks the fact that the chancellor had an opportunity to observe the demeanor of the witnesses, to judge their credibility and to pass upon the weight to be given their testimony. See Maryland Rule 1086; Colburn v. Colburn, 15 Md. App. 503, 513, 292 A. 2d 121, 127 (1972).

Where the facts or inferences therefrom, or both, are in dispute, such questions are to be determined by the trier of fact. In such instances, “involving the resolution or questions of fact, it is not the province of this Court to weigh and evaluate the conflicting evidence to determine its comparative value; we decide only whether there is any evidence legally sufficient to support the finding of the trier of facts — in this instance the court sitting without a jury — and in making this decision we assume the truth of all the evidence, and of all favorable inferences fairly deducible therefrom tending to support the factual conclusion of the court.” Carling Breving Co. v. Belzner, 15 Md. App. 406, 411-12, 291 A. 2d 175, 179 (1972), citing Stancliff v. H. B. Davis Co., 208 Md. 191, 197, 117 A. 2d 577, 580 (1955). Nor can we substitute our judgment for that of the lower court on its findings of fact, but can only determine whether those findings are clearly erroneous in the light of the total evidence. Colburn v. Colburn, supra.

As the trial court pointed out, his conclusion upon the testimony offered was supported by the bill of complaint filed in April 1967 by Carmela DiTommasi — seven months after the purported gift — wherein she listed the premises as the “common property of the parties.”

We conclude that Judge Powers was not clearly erroneous in finding an absence of donative intent where the testimony of both the apellant and appellee disclosed that he, in visiting the premises, had admitted himself with his own key, without any evidence of relinquishment of his right to possession, when coupled with the appellant’s testimony concerning the gift of a boat, and from the very nature of this purported “gratuitous transaction” where the references to the house only arose at the zenith of a series of stormy and violent domestic arguments. In order for such intent to be proven, it must be shown from the evidence that the donor clearly and unmistakably intended permanently to relinquish all interest in, and all control over the res which is the subject of the gift. See Schilling v. Waller, 243 Md. 271 276-77, 220 A.2d 580, 583 (1966), and cases therein cited.

Recognizing that no corporeal estate or freehold interest in land may be assigned, granted or surrendered unless it be in writing signed by the party so granting, assigning or surrendering it, see Prevas v. Gottlieb, 229 Md. 188, 193, 182 A. 2d 489, 492 (1962); see also Maryland Code (1974) Real Property Article, § 5-103, the appellant nonetheless argues that equity will protect a parol gift of land if accompanied by possession and the donee, induced by the promise to give it, has made valuable improvements on the property by the expenditure of labor or money. She contends — presupposing the validity of a parol gift from her former spouse — that she entered into possession of the premises and in reliance upon the promise, expended considerable sums by way of improving it and that as a result thereof the appellee is estopped from asserting his interest as a tenant in common in the realty.

The chancellor, in answering in the negative as to whether the appellee was estopped, pointed out that the doctrine of equitable estoppel “ ‘will not be applied unless it is shown that the person sought to be estopped has been guilty of sone wrongful or unconscientious conduct upon which another relied and was misled to his injury.’” Alvey v. Alvey, 220 Md. 571, 576, 155 A. 2d 491, 493 (1959). Finding from the evidence that there was no showing “that the defendant’s [appellant’s] payment of obligations on the property were induced by the plaintiff [appellee] or that the amount of reduction of plaintiff’s [appellee’s] principal obligation [under the deed of trust] was even as much as he would be entitled to as his share of the rent,” found the appellant’s reliance upon the holdings in Machovec v. Shipley, 171 Md. 339, 189 A. 223 (1937), to be misplaced.

As we see it, the holdings by the Court of Appeals in Withers v. Douglas, 206 Md. 141, 110 A. 2d 513 (1955), are completely dispositive of this issue.

In Withers the appellant and appellee had lived together as husband and wife, “without benefit of clergy,” during which time, as co-owners, they purchased a home, taking title as tenants by the entireties and executing a mortgage to a building and loan association. In early 1950 Withers terminated the relationship and left the home; the appellee continued to reside there with the children. When he left the appellee paid on the principal of the mortgage, as well as the interest, taxes and ground rent. She repeatedly hounded him for money until he wrote three notes, the first of which said in part, “You will better sell the house and get the money for it. I will sign it over to you.” A year later he again wrote, “I am paying no more the house is yours — do what you want with it.” A month after that he wrote for the third time, “Here is 50 dollars I cant give anymore — the house is yours so Please dont Bother me — I pay no more.” Notwithstanding such declarations, he continued to forward substantial sums of money.

Several months after the first note was written, in 1951, the appellee’s mother spent $200 to have the walls of the house “damp-proofed”; the appellee had some wallpapering done.

When the appellant filed a bill for the sale of the property and after a decree had been passed, the appellee, with leave of court, filed a cross-bill alleging that the appellant “ ‘had abandoned and voluntarily surrendered and given to . . . [her] any interest he had in said property.’ ” The chancellor determined there had been a valid, though informal, gift of his interest in the real estate by one co-owner to the other, granted the relief prayed in the cross-bill and dismissed Withers’ original bill. He appealed.

In reversing the lower court the Court of Appeals remanded the case so that a sale could be made pursuant to the original bill of complaint and held that there was no showing that the appellee’s possession [the same as that here asserted by the appellant] was referable to anything except her status as a co-owner and tjiat there was no evidence that she had changed her position, or was put to a disadvantage so that it would be inequitable, to the point of fraud, to permit appellant to deny completion of the gift.

Judge Hammond (later Chief Judge) of the Court of Appeals, for that Court, state d:

“It is true that equity protects a parol gift of land if accompanied by possession and the donee, induced by the promise to give it, has made valuable improvements on property by the expenditure of labor or money. The principle involved and the tests applicable are similar to those which underlie and control the doctrine of part performance in cases of contracts to sell land which do not meet the requirements of the statute of frauds. Hardesty v. Richardson, 44 Md. 617, 624; Miller, Equity Procedure, Sec. 671, p. 777; Restatement, Restitution, Sec. 164, p. 666; Pomeroy, Specific Performance of Contracts, 3rd Ed., Sec. 130. The tests as to part performance require that the proof must he clear, definite and conclusive, both as to the fact of the gift and as to the acts done, as well as that the acts had been done on the strength of the gift only, so that any attempt by the donor to avoid the gift would be inequitable to the point of fraud. Hardesty v. Richardson, supra; Soehnlein v. Pumphrey, 183 Md. 334, 336; Polianski v. Polianski, 138 Md. 598; Whitaker v. McDaniel, 113 Md. 388; Chamberlain v. Preston, 170 Md. 1; Jaworski v. Jaworski, 202 Md. 1. See also Reinhardt v. Fleming (Wash.), 140 P. 2d 504; and the annotation in 155 A.L.R. 73, 76.” (Emphasis supplied.) 206 Md. at 144-45, 110 A. 2d at 515-16.

After pointing out that “[t]he tests as to whether the acts of part performance are referrable only to the contract or gift” were discussed in Semmes v. Worthington, 38 Md. 298, 327 (1873), where the Court said: “ ‘The act relied on as part performance must, in itself furnish evidence of the identity of the contract; and it is not enough that it is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill. ’ [citations omitted]” (emphasis in original), he continued for the Court:

“Another such test is applied in Rosenthal v. Freeburger, 26 Md. 75, 80, — that continuance of possession, taken before the contract or gift was made, is usually insufficient as part performance. In that opinion, the Court, speaking of possession of a tenant holding over, adopted the following language: ‘This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement cannot be considered as operating to take the case out of the statute.’ Howard v. Carpenter, 11 Md. 259, 276; Billingslea v. Ward, 33 Md. 48, 54; Boehm v. Boehm, 182 Md. 254, 265, supra.”
“Pomeroy, in the work cited [Specific Performance of Contracts (3d ed.) (1926)], says in Sec. 121 at p. 305, that possession, to be sufficient, must: * * in short, indicate the commencement of a new interest or estate * * *. The rule concerning exclusive possession applies with special force to tenants in common. Where a plaintiff claims as purchaser of land to the possession of which he and others are entitled as tenants in common, or joint tenants, no mere possession by him can avail as a part performance; no possession can suffice which does not show his individual right to the exclusion of the other co-tenants. The reason of this is obvious, and results from the nature of such co-ownership. Each tenant is entitled to the possession of the common estate; the possession of one is that of all the others’ See annotation in 101 A.L.R. 923, at pp. 1037-1041. See also Delnero v. Serra (N.J.), 63 A. 2d 896; Brotman v. Brotman (Pa.), 46 A. 2d 175; In re Yamall’s Estate (Pa.), 103 A. 2d 753.” (Emphasis supplied.) 206 Md. at 145-46, 110 A. 2d at 516.

As in Withers, supra, where the appellee had lived in the property continuously since her “mate” had left her, the appellant here has continuously used the premises as her home since her spouse left on November 23, 1966, and what the Court there stated concerning the appellee’s possession of the premises seems here particularly apposite. The Court said:

“There is nothing to show, at any time after the receipt of the notes, that her possession was referrable to anything except her status as co-owner. There is no evidence that she changed her position or was put to a disadvantage, by reason of the notes, so that it would be inequitable to the point of fraud, to permit the appellant to deny completion of the gift. If we assume that the notes which the appellant wrote were intended to constitute a present gift, rather than suggesting, as might be inferred from some of their language, a future donative intent, we think that under the tests of the cases, appellee has fallen far short of relating her possession solely to the gift. Rather, in the language of the cases, her possession certainly was not unequivocal evidence of the gift alleged in her cross-bill.” (Emphasis supplied.) 206 Md. at 146-47, 110 A. 2d at 516-17.

The Court was further of the view that the expenditure incurred for water-proofing was “more readily referrable to her status as a co-owner and an occupant of the property that it is as a donee of a part interest”; and that it might be inferred “that the expenditure would not have been made if the property were not to have been lived in indefinitely.” 206 Md. at 147, 110 A. 2d at 517.

See also Boehm v. Boehm, 182 Md. 254, 265, 34 A. 2d 447, 452 (1943), where parents, cotenants with their son and daughter-in-law, contended that their son and his wife had entered into an oral agreement to sell their interest to them in the farm and that they had paid a portion of the selling price, had resided on the farm and had paid all taxes and interest on a mortgage. In concluding that the parol contract was unenforceable under the Statute of Frauds, the Court held the part payment of the purchase price, together with mere continuance of possession by the purchasers were not acts of part performance so as to remove the bar of the statute, the Court stating:

“When possession is assumed as an act of part performance it must appear that the land has been delivered and the possession taken in pursuance of the contract and so retained and continued. The possession must be referable to the contract. Mere occupancy, not shown to he in pursuance of the contract, does not constitute part performance. Miller’s Equity Procedure, Sec. 707; Semmes v. Worthington, 38 Md. 298.” (Emphasis supplied.) 182 Md. at 265, 34 A. 2d at 452.

Assuming, arguendo, that the appellant had met her burden of proof in establishing a donative intent on the part of Adrian DiTommasi, it is nonetheless clear that the appellant’s continued possession of the premises was a possession to which she was entitled of the common estate held by the parties and was not a possession which she undertook to enter into in reliance upon the alleged gift; there is no showing that “her possession was referrable to anything except her status as a co-owner.” Indeed, it appears, as it did in Withers v. Douglas, supra, that the improvements she made to the premises — by way of the installation of central air conditioning, storm doors and windows and a new bathroom sink — are all “more readily referrable to her status as a co-owner and an occupant of the property than [to that] ... as a donee of a part interest.” These expenditures appear to have been made by way of “creature comforts” in connection with her continued occupancy.

The appellant’s reliance upon Masters v. Masters, 200 Md. 318, 89 A. 2d 576 (1952), Shives v. Borgman, 194 Md. 29, 69 A. 2d 802 (1949), Soehnlein v. Pumphrey, 183 Md. 334, 37 A. 2d 843 (1944), Buckner v. Jones, 159 Md. 679, 152 A. 515 (1930), Gorsuch v. Kollock, 139 Md. 462, 115 A. 779 (1921), Whitaker v. McDaniel, 113 Md. 388, 78 A. 1 (1910), Loney v. Loney, 86 Md. 652, 38 A. 1071 (1898), Hardesty v. Richardson, 44 Md. 617 (1876) and Moale v. Buchanan, 11 G & J 314 (1840), is misplaced since in none of those cases was the grantee or donee a cotenant of the property.

Nor are the holdings in Cooper v. Davis, 226 Md. 371, 174 A. 2d 144 (1961), or in Hohman v. Hohman, 164 Md. 594, 165 A. 812 (1933), here applicable. In Cooper v. Davis, supra, the chancellor found a valid parol agreement to divide a 44-acre parcel of land owned by the parties as tenants in common into two 22-acre tracts, where each co-tenant took and maintained exclusive possession of his separate acreage. In Hohman v. Hohman, supra, the Court upheld the validity of an agreement between beneficiaries under a will to postpone a division of the estate they inherited so that the executors might exercise the power of sale given them under the will, and where the appellees, relying upon the agreement, had foregone rights to partition, to income to be derived from the property and had jointly, with the appellants, permitted sales of the property for their joint account.

We concur in the conclusion reached by the chancellor that the appellee was not estopped, upon the facts in this case, from asserting his interest in the title to the property.

(c)

Appellant’s claim for contribution from the appellee falls into three categories: (i) the amount paid by her at the time of settlement for the purchase of the property, (ii) the moneys paid by her for taxes, insurance and to defray the principal and interest due American Federal Savings and Loan Association on the deed of trust, and (iii) the funds expended by her by way of improvements and maintenance of 1902 Callaway Street.

(i) It appears that at the time of settlement for the purchase of the premises a $15,000 down payment was made by the parties comprised of a $10,000 check, payable to “Carmela Culp” and representing a withdrawal from a personal savings account, a $4,000 check, representing a withdrawal from a joint savings account, with the remaining $1,000 being “earnest money.” A loan from the American Federal Savings and Loan Association, secured by a deed of trust, in the amount of $12,950 represented the balance.

The appellant’s contention that the chancellor was in error in failing to charge the appellee with the amount of $10,000 she contributed toward the purchase of the property is without merit. Where husband and wife acquire property as tenants by the entireties and the wife contributes a major portion of the purchase price, in legal effect and in the absence of proof that her donation was not her voluntary act, the transaction on its face amounts to an absolute gift. Anderson v. Anderson, 215 Md. 483, 488-89, 138 A. 2d 880, 883 (1958). See also Whitelock v. Whitelock, 156 Md. 115, 120, 143 A. 712, 714 (1928); Reed v. Reed, 109 Md. 690, 72 A. 414 (1909). The record before us is devoid of any evidence to suggest that when the appellant donated $10,000 toward the purchase of the property it was not her voluntary act.

(ii) In rejecting the appellant’s contention that she was entitled to contribution from her former spouse on account of the payments made by her for taxes, insurance and interest and principal due under the deed of trust, the chancellor recognized the general rule stated in Pino v. Clay, 251 Md. 454, 456-57, 248 A. 2d 101, 102-03 (1968), that “when one tenant pays a mortgage or other encumbrance upon the common property, he is entitled to contribution from his co-tenants to the extent to which he has paid their share, and is entitled to an equitable lien for the amount due him.” See also Withers v. Douglas, supra, 206 Md. at 148, 110 A. 2d at 517. Yet, citing Meyers v. East End Loan & Savings Ass’n, supra, for the premise that it is the duty of courts of equity “to adapt their methods to the exigencies of justice (and) to protect the equitable rights of those concerned,” the chancellor treated those payments she made to be “in the nature of monthly rental payments” which “would have been incurred were she to live anywhere, while similar payments were presumably oeing incurred elsewhere by the plaintiff [appellee].”

As we see it, this reliance upon the holdings in Meyers, supra, is misplaced; indeed, that case is authority for a conclusion opposite that reached. In Meyers, husband and wife entered into an installment contract with the appellee association to purchase a dwelling house; the husband paid $105 when the contract was executed and although the parties, four years later, were divorced, the husband paid the regular installments both before and after the divorce. Several weeks after the entry of the divorce decree the wife filed a bill for the sale of the property in lieu of partition. Although the lower court dismissed her bill, a supplemental decree was entered finding that Mrs. Meyers was entitled to one-half the total sum which her husband had paid under the agreement up to the date of the divorce. The appellee, Meyers, contended that subsequent to the divorce his wife was required to pay one-half of the amounts paid on the installment contract and chat “without having paid or offered to pay any part of the same, she is not entitled to participate in the benefit of the payments made [by him] since the divorce,” or to a decree for the sale of the property.

In reversing and in holding that the appellant was entitled to a decree for the sale of the property the Court of Appeals stated:

“In the case now under consideration the amount paid by George W. Meyers on account of the property prior to the decree of divorce must be regarded as a gift to his wife to the extent of her interest in the property. As the result of the divorce, they each became entitled as tenant in common to an undivided one-half interest in the property, and liable for one-half of all payments that thereafter became due under the terms of the contract of purchase with the association. To the extent that such payments, made since the divorce have been made by George W. Meyers, he is entitled to contribution from the appellant. But as it is not claimed that the amount due George W. Meyers by the appellant is more than the value of her one-half interest in the property, she is entitled to a decree for a sale of the property, and in the distribution of the proceeds the amount ascertained to be due by her to George W. Meyers should be allowed him out of her share.” (Emphasis supplied.) 139 Md. at 614, 116 A. at 456.

In Withers v. Douglas, supra, in remanding the case, the Court stated:

“A co-tenant may be entitled to contribution from other co-tenants for monies paid for the discharge of liens or encumbrances, and, in some instances, for the expense incurred in preservation of the property. It may he that the appellee would be entitled to contribution from the appellant for some or all of the money expended by her after he left, according to the facts presented.” (Emphasis supplied.) 206 Md. at 148, 110 A. 2d at 517.

In Hogan v. McMahon, 115 Md. 195, 80 A. 695 (1911), the appellant filed a bill seeking the sale of a parcel of ground held with the appellee as tenants in common. The appellee denied that the plaintiff was entitled to relief, asserting that she had expended moneys for improvements to the property, mortgage payments and taxes, exceeding the amount claimed in the bill of complaint, without any contribution from the plaintiff. Both parties had lived on the property until the plaintiff left of his own accord — there was no evidence that he had been ousted from possession by the defendant. Upon those facts the Court of Appeals held “[T]here can be no doubt that the appellee is entitled to contribution by the appellant for liens and incumbrances paid by her since they became tenants in common. 17 Am. and Eng. Ency. of Law, 685; 7 Ibid. 353, and, as shown by the last cited authority, that statement includes mortgages, taxes and ground-rent.” The holdings in Hogan were followed in Pino v. Clay, supra, where it was further pointed out that the “equity of the non-contributing co-tenants was increased by these payments . . . the final result of both the curtailment payments and the monthly payments was to increase the co-tenants’ aliquot share in the property. Equity will not allow the unjust enrichment of the appellees at the appellants’ expense.” 251 Md. at 457, 248 A. 2d at 103. See also Restatement of Restitution § 105 (1937), cited in Pino.

In Schilbach v. Schilbach, 171 Md. 405, 189 A. 432 (1937), the executrix and the son of a deceased tenant by the entireties sought to charge the other tenant, the surviving husband, for certain expenses, including mortgage interest paid by, and on behalf of the decedent during her lifetime. Although a demurrer to the bill was sustained because of a misjoinder of plaintiffs, the Court, without prejudice, upheld the right to seek enforcement of the claims in a properly filed suit.

The Court, after observing that a tenancy by the entireties is essentially a joint tenancy and except for the fact that it cannot be defeated during the lives of a husband and wife, without the joint action of both, the same rules of law apply to it as to any other co-tenancy, pointed out that in Hogan v. McMahon, supra, a cotenant was held entitled to contribution “for necessary repairs and improvements, which add a permanent value to the estate, made and paid by a cotenant with the assent of the other, and to subrogation to the rights of a mortgagee where one cotenant pays off a mortgage on the common property,” and stated:

“Recourse can only be had against the property for such claims as the wife might make if living, and then for payments made on account of liens, incumbrances, and permanent improvements at her request, the assumption being made on the allegations of the bill that nothing was done with the assent of the defendant. . . .” 171 Md. at 409, 189 A. at 434.

The holdings in Schilbach make it clear that the rule of law applied in Hogan v. McMahon, supra, for contribution between tenants in common “is equally applicable to tenants by the entireties.” See Colburn v. Colburn, 265 Md. 468, 475, 290 A. 2d 480, 484 (1972). See also Lingo v. Lingo, 267 Md. 707, 713, 299 A. 2d 11, 14 (1973).

In Colburn, supra, the Court, pointing out that the wife “possesses an interest in the property which is protected from loss by the payment of taxes and insurance premiums,” held that where the husband paid taxes and insurance premiums on the home, exclusively occupied by him but held as tenants by the entireties, the wife as a co-owner was required to contribute to such expenditures even though without an agreement on her part to pay, the Court stating that: “We do not understand Hogan, or the prevailing majority view, to require that a co-owner consent to the payment of taxes or reasonable insurance premiums before an obligation to contribute to the cost thereof attaches.”

In Lingo v. Lingo, supra, the Court held that a spouse who makes contributions by way of loan payments to avoid loss of property held as tenants by the entireties, through foreclosure was entitled to reimbursement of his contribution upon the sale of the property where the parties were actually “joint venturers” in making improvements to the property and where they were separated when the advance was made, the Court stating that: “Although Colburn dealt with a dispute over taxes and insurance premiums, our reasoning there in pointing out that the property was ‘protected from loss by the payment of the taxes and insurance premiums,’ is equally valid in the case of the loan payment here.” 267 Md. at 713, 299 A. 2d at 14. After analyzing the holdings in Hogan, Pino, Schilbach and Colburn, the Court stated: “We think that the four last-mentioned authorities, taken together support our conclusion that the gift presumption does not apply to the particular circumstances of this case.”

Lastly in Aiello v. Aiello, 268 Md. 513, 518-19, 302 A. 2d 189, 192 (1973), the Court of Appeals stated:

“Generally, when one of two or more co-owners of an equity of redemption satisfies the mortgage debt or other encumbrance upon their common property and that payment inures to the benefit of other owners, the payor is entitled to receive contribution from his co-tenants to the extent he has paid their share. This is so unless, as between any of the co-tenants, he alone or with some but not all the others, has primary responsibility to satisfy the obligation. (Citations omitted.)”

In Aiello the Court, in citing Meyers v. East End Loan & Savings Ass’n, supra, stated: “‘[Cjourts of equity do not hesitate to adapt their methods to the exigencies of justice or to protect the equitable rights of those concerned’ and compel the ultimate payment of a debt by those who in equity and good conscience ought to pay it.” 268 Md. at 519, 302 A. 2d at 192.

A distillation of the holdings in all these cases convinces us that the chancellor incorrectly denied unto the appellant any contribution from her former spouse in connection with the payment she made for taxes, insurance premiums and on account of their joint obligation under the deed of trust subsequent to the date of the divorce decree whch converted their tenancy by the entireties into a tenancy in common. Since the right of contribution “is equally applicable to tenants by the entireties,” it would further appear that the appellant — upon evidence overcoming a presumption of a gift by her — may well be entitled to contribution from the appellee as well “for some or all the money expended by her after he left” and during the interval, before the divorce decree, while they remained tenants by the entireties.

Although from the evidence concerning their matrimonial discord, the animosity existing between them, the circumstances which precipitated the appellee’s departure from the premises and his subsequent arrest for nonsupport, it might be inferred that those payments made by the appellant between November 23, 1966 (when he left) and June 5, 1973 (when they were divorced) were not intended by her to be a gift to him, this issue was not developed in the trial court and the record here is devoid of any testimony to permit us to resolve it.

When the chancellor, in denying her contribution, equated these payments by the appellant with “monthly rental payments” which “would have been incurred by [her] . . . were she to live anywhere,” we think, absent any evidence in this record in connection with whether or not the appellee did make any payments for the support of the appellant or made payments unto her from which she was expected to keep current their joint obligations under the deed of trust, that he, although undertaking “to protect the equitable rights of those concerned,” may have failed to “compel the ultimate payment of a debt by [him] who in equity and good conscience ought to pay it.” See Aiello v. Aiello, supra.

(iii) The chancellor, stating that “in the interest of equity the Court finds it necessary to deviate from the traditional property concept that in the absence of a co-tenant’s agreement to pay, another co-tenant has no right to contribution for repairs, improvements or carrying charges,” found that it would be an “injustice to allow the plaintiff [appellee] to profit, as he will at the time of sale, from the permanent improvements made by the defendant [appellant] to the property,” ruled that in the account to be stated by the auditor the appellant should receive credit for the cost of the installation of a central air conditioning unit ($1,400), the installation of storm doors and windows ($300), the installation of a new (bathroom) sink ($90) and $375 for the “last painting job” (one-half of the total of $750 claimed by the appellant for twice having painted the house.) Additionally, he ordered the appellant charged with the cost ($80) of replacing window glass which he had broken. The chancellor rejected the appellant’s claim of $1,278.50 for lawn care over a seven and one-half year period (at $65 per year) by finding that such expenditures were “for maintenance rather than [for] permanent improvements to the property.”

Although it is difficult to fathom what the appellant’s contentions really are in this regard, other than she might feel that “she did not get enough,” the appellee — who took no cross-appeal — states affirmatively that he “agrees with the opinion of the lower court with respect to the appellant’s right to reimbursement for those items set forth in the opinion and concurs with the reasons given by the court.”

In Woodcock v. Pope, 154 Md. 135, 140 A. 76 (1928), the Court held:

“[T]he general rule is that one cotenant is entitled to contribution from another for necessary repairs and improvements when they were made with the assent of the other, or the repairs were necessary for the preservation of the building or other erection on the land, and were done by one cotenant after request of and refusal by the other cotenant, Hogan v. McMahon, 115 Md. 195, 201, 202; Bonaparte v. Thayer, 95 Md. 548, 587; Williams v. Harlan, 88 Md. 1; Tiffany on Real Property (2nd Ed.), sec. 200, p. 689; Israel v. Israel, 30 Md. 120, 128; Venable’s Real Property, p. 102. . . .” (Emphasis supplied.) 154 Md. at 147, 140 A. at 81.

In Colburn v. Colburn, supra, the husband contended that the chancellor erred in not allowing him a deduction for repairs made to one of the rental properties held by him with his wife as tenants by the entireties. The Court of Appeals in affirming the chancellor in this regard, finding that the repairs were admittedly made “without prior consultation” with Mrs. Colburn, stated:

“We affirm the ruling of Woodcock v. Pope for it is our belief that factors such as the expediency of making necessary repairs, the possible obligations of third parties to make repairs and, indeed, the necessity of the repairs themselves are proper objects of consideration for all of the joint owners. Mr. Colburn’s action in not informing his wife of the performance of the repairs, deprived her of the opportunity to make these determinations prior to the money being expended; consequently, the refusal of the court to deduct these amounts from the proceeds of the properties was proper.” 265 Md. at 477, 290 A. 2d at 485.

We have no difficulty in concluding, as did the chancellor, that the claim for lawn care cannot be brought within the ambit of “necessary repairs and improvements,” and we concur in the ruling that the appellee could not be subjected to contribution for that item.

There is no reference whatsoever in the record here before us that the appellant made any request upon the appellee — or that there was any refusal by him in connection with the expenditure for the improvements she undertook to add to the residence which the parties continued to own. Indeed, under the holdings in Woodcock v. Pope, supra, and in Colburn v. Colburn, supra, the “deviation” by the chancellor “from the traditional property concept” appears to have been erroneous and the appellant appears to have been granted contributions beyond that to which, under the law, she may have been entitled. Even though the chancellor’s ruling appears to be contrary to the established law, since the appellee does not challenge the correctness of these rulings we shall consider them — from the standpoint of the improvements made — as settled. We recognize, as did the chancellor, that the improvements made to the premises by the appellant would certainly tend to enhance the market value of the premises at the public sale to be made pursuant to the decree, and not to charge the appellee for contributions therefor would — as he apparently recognizes — permit him to realize a profit from the sale with a resultant injustice to the appellant.

Although we have set forth — at much too great a length — our views concerning the conclusions reached by the chancellor in connection with the appellant’s asserted rights to contribution, those rulings were set forth in his written opinion and were never formalized by being incorporated in the decree which was entered or in any separate order. The reported cases are legion which hold that an appeal in equity will lie only from a written order or decree and that such appeals are not allowable from the comments made by, or the opinion of the lower court, see Alberstadt v. Alberstadt, 257 Md. 552, 553, 263 A. 2d 535, 535-36 (1970), McCann v. McGinnis, 257 Md. 499, 505, 263 A. 2d 536, 539 (1970), Millison v. Citizens Nat'l Bk. of Southern Maryland, 256 Md. 431, 436, 260 A. 2d 324, 327 (1970), Mattingly v. Houston, 252 Md. 590, 593, 250 A. 2d 633, 634 (1969), hence these allegations of error by the appellant are technically not properly before us since counsel did not submit an order incorporating the rulings by the chancellor. Indeed, under the holdings in Wooddy v. Wooddy, 270 Md. 23, 30, 309 A. 2d 754, 758 (1973), it appears that these rulings by the chancellor may have been premature. See also Maryland Rule 595.

We have undertaken, however, to express what we consider to be the correct principles of law applicable to these contentions by the appellant concerning her right of contribution since, upon ratification of the report of sale made by the cotrustees under the decree, the proceedings will be referred, pursuant to Maryland Rule BR6, to the auditor for the statement of an account and for such a hearing as may be required in accordance with the provisions of Maryland Rule 595, and without our views having been expressed on the issue of contribution for loan payments, taxes and insurance, the ruling made by the chancellor in this particular might have been considered as binding and been applied by the auditor. See Wooddy v. Wooddy, supra. Patently, to dismiss so much of the appellant’s appeal “without an expression of the views of the court” on this point would then result in another appeal. See Langhirt v. Hicks, 153 Md. 31, 34, 137 A. 482, 483 (1927), where the Court stated: “We shall therefore state what our decision would be if the case viere properly before us.” See also Hogan v. McMahon, supra, where the Court expressed its views on the subject “to avoid further litigation.”

Similar procedures were invoked by the Court of Appeals in McCann v. McGinnis, supra; Millison v. Citizens Nat'l Bk., supra, and Bell v. Shifflett, 249 Md. 104, 238 A. 2d 533 (1968).

It appears further that these questions of law were presented to the lower court and that a decision thereon by this Court is both necessary and desirable for the guidance of the lower court, upon remand, and to avoid the expense and delay of another appeal. See Rule 1085.

We shall affirm the decree ordering the sale of the property owned by the appellant and appellee and appointing trustees to make that sale, but, because of what we see to be the erroneous rulings by the chancellor concerning a disallowance unto the appellant for any contribution from the appellee for the payments she made on account of taxes, insurance premiums and the principal and interest due and owing by the parties under the deed of trust, we shall order the case remanded for the taking of testimony before the auditor on that issue, in accordance with the views we have expressed.

Decree for sale of property affirmed; case remanded to the Circuit Court for Prince George’s County for further proceedings in accordance with the views expressed herein; costs to be divided between the appellant and appellee.

      . The transcript does not disclose whether this declaration by Adrian was in English or Italian.

      . The bill of complaint to which the trial court made reference was not included in the Record; we can only surmise that it was a suit instituted by her for a divorce a mema et thoro.

      . The Court held that the illicit relationship would not defeat the appellant’s right to require a sale and that it was not necessary to decide whether he was a joint tenant or a tenant in common.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    ROBERT R. GROOMS et al. v. LAVALE ZONING BOARD et al.
    [No. 722,
    September Term, 1974.]

      Decided June 27, 1975.

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

      JohnF. Somerville, Jr., for appellants.

      Harry I. Stegmaier, with whom were Stegmaier, McMullen & Kazary on the brief, for appellee John A. Cupler, 2d et ux., and The National Jet Company.

      Leslie J. Clark for appellee LaVale Zoning Board.

      William Walsh, with whom were Walsh, Walsh &
      Reinhart and Lee C. Barnett and Barnett & Barnett on the brief, for appellee Cumberland Mall Associates.
   Davidson, J.,

delivered the opinion of the Court.

On 26 November 1973 the appellee, LaVale Zoning Board (Board), enacted a resolution and order which amended the zoning map of the LaVale Zo ning District, originally enacted in 1958. The adoption of the resolution was preceded by a “study” of the entire LaVale Zoning District comprised of some 13,700 acres of land, public notice initially given on 22 June 1973 and two public hearings held on 9 July and 20 October 1973. Approximately 1,328 acres of land at ten different locations, designated as Sections A through J, were rezoned by the resolution. About 925 acres were reclassified from the Rural-Residential zone (agricultural uses, small shops, dwellings) to the Residential A zone (family dwellings, apartments, churches, home occupations), while 414 acres were transferred from the Rural-Residential classification to Commercial A (retail businesses, dwellings). The reclassification approximately doubled the amount of Commercial A land available in the LaVale Zoning District.

Included in the commercial reclassification were approximately 84 acres of land, designated as Section J, owned by the appellee, Cumberland Mall Associates (owner), which were reclassified from the Rural-Residential to the Commercial A zone and which constitute the focal point of this proceeding. Proposed for construction on this site was a regional shopping center, comprised of an enclosed mall of approximately 500,000 square feet, to accommodate over 50 stores. Some property owners living in single-family residences located on lots within Section J, itself, as well as other neighboring property owners (protestants) opposed, among other things, the adoption of that portion of the resolution affecting Section J. They appealed the grant of the reclassification to the Circuit Court for Allegany County where Judge James S. Getty entered an order affirming the action of the Board insofar as it affected Section J. This appeal followed. Here three questions are raised:

1) Do the protestants have standing to appeal?
2) Was the action of the Board invalid because two of its members had not been elected as required by law?
3) Did the map amendment adopted by the resolution of 26 November 1973 constitute comprehensive rezoning which bore a substantial relationship to the public health, comfort, order, safety, convenience, morals and the general welfare?

I

The Board’s contention that the protestants lack standing to bring this appeal because they failed to allege and prove that they were aggrieved parties is without merit. Section 360 of the Allegany County Code provides, in pertinent part:

“Any person, persons, taxpayer or officer of the District, jointly or severally aggrieved by a decision of the LaVale Zoning Board may, within thirty days after the filing of such decision in the office of the Zoning Board, appeal to the Circuit Court for Allegany County.”

Thus, under the applicable local statute, a condition precedent to be met before a person has standing to appeal the Board’s decision to the Circuit Court for Allegany County is that he must be aggrieved by the decision.

The principles evolved to determine when a person is “aggrieved” by the decision of a zoning body were articulated in Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 143-46, 230 A. 2d 289, 294-95 (1967). Among them are the following:

“2. In cases involving appeals under the provisions of a zoning ordinance:
(a) It is sufficient >.f the facts, constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication. Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A. 2d 294 (1966).
(b) An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved. . . .
“4. If any appellant is a person aggrieved, the court will entertain the appeal even if other appellants are not persons aggrieved. See e.g., Marcus v. Montgomery County Council, supra [235 Md. 535, 201 A. 2d 777 (1964)].”

Applying these principles to the instant case produces a clear result. The petition was filed by seven named individuals, constituting the- Committee of Concerned Citizens Opposing Rezoning. It alleges that it is brought by the petitioners on “their own behalf” as “residents of the LaVale area” as well as on behalf of “all the other citizens of the LaVale zoning area.” One of the named individual appellants is Ronald C. Gordon, who testified at one of the public hearings before the Board. Exhibit 12A, a petition in opposition to the reclassification of Section J, which was introduced into evidence at the second public hearing, indicates that Gordon is a property owner residing in a single-family residence located within the original boundaries of Section J and in close proximity to the land finally reclassified. Although there was conflicting evidence in the record on the question of special damages, the trial court implicitly determined that the protestant was aggrieved. We agree. Under the present circumstances the facts constituting his aggrievement appear in the petition for appeal by necessary implication and the appeal must be entertained.

II

The protestants’ contention that the action of the Board was invalid because two of its three members were not elected is also without merit. Section 359 of the Allegany County Code provides that the LaVale Zoning Board shall be comprised of three persons, each of whom is to be elected to serve a six year term. The first election was to be held in 1957 and the terms of office were arranged so that one expired in 1958, one in 1960 and one in 1962. Thereafter, every two years, one member of the Board was to be elected to serve a term of six years.

Section 359 provides, in pertinent part:

“(c) In the event of the removal from office of any member, or his failure to qualify, or his death in office, or for his inability to serve for any reason whatsoever, this subtitle shall not fail for want of a member of the Board, but in all such cases the Board of County Commissioners for Allegany County shall appoint a person to serve as a member of the Board to fill the unexpired term of the member of the Board. In the event that the original Board cannot or is not for any reason whatsoever elected at the June 18, 1957, referendum and election, the Board of County Commissioners of Allegany County shall appoint the entire Board as aforesaid. . . .
“(d) Oath of office. Before assuming the duties of office, each member-elect shall take the constitutional oath of office, which shall be recorded in the office of the Clerk of the Circuit Court for Allegany County.” (Emphasis added.)

The record shows that one of the three members of the Board, a Mr. Heacox, was duly elected to a six year term in 1972. His status is not in question. Another of the Board members, Mr. Kenneth M. Wilson, was appointed to the Board in December, 1966, to fill the unexpired term of one John J. Rowan who resigned. There was no evidence to show that Wilson failed to take the requisite oath. In 1968 no one filed for the office of member of the Board, and in March, 1969, the County Commissioners appointed Wilson for a full six year term. He thereafter took the requisite oath of office. The third member of the Board, Mr. Robert C. Moore, was appointed in September, 1969, to fill the unexpired term of Arthur W. German, who resigned. He thereafter qualified for office by taking the requisite oath. In 1970 nobody filed for office of member of the Board and, on 12 January 1971, Moore was appointed by the County Commissioners to a full six year term on the Board. He thereafter took the requisite oath. Both Wilson and Moore openly and notoriously discharged the duties of Board members from the time they took office until the time of the enactment of the map amendment here in issue.

A de jure officer is one regularly and properly elected or appointed and qualified, and holding his office during a constituted term. 3 McQuillin, Municipal Corporations § 12.102 (3rd ed. 1973). A “de facto” officer has been defined as one in actual possession of an office under some colorable or apparent authority, who exercises the duties of the office under such circumstances of reputation and acquiescence by the public authorities and the public as is calculated to induce people, without inquiry, to submit to or invoke his official action, supposing him to be the officer he assumed to be. Kone v. Baltimore County, 231 Md. 466, 471, 190 A. 2d 800, 802 (1963); Reed v. President of Town of Northeast, 226 Md. 229, 243-44, 172 A. 2d 536, 542 (1961); Buckler v. Bowen, 198 Md. 357, 369-371, 84 A. 2d 99, 105-06 (1951). A “usurper” or “intruder” has been defined as one who has neither lawful title nor color of right to office. Reed, supra, at 226 Md. 244, 172 A. 2d 542-43. Thus, a de facto officer is distinguished from a usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the office and assumes to exercise its function without either the legal title or color of right to such office. 3 McQuillin, supra, at §§ 12.102, 12.103. Color of right may consist of an election or appointment, holding over after the expiration of a term, or by acquiescence by the public for such a length of time as to raise the presumption of colorable right by election, appointment or other legal authority to hold such office. 3 McQuillin, supra, § 12.102; see Izer v. State, 77 Md. 110, 115, 26 A. 282, 283 (1893).

All of the official acts of a defacto officer, filling a dejure office, done in regard to public matters affecting the public interest, are, upon grounds of public policy and necessity, considered as valid and binding as if they had been performed by de jure officers. Kone, supra, at 231 Md. 473, 190 A. 2d 803; Reed, supra, at 226 Md. 246, 172 A. 2d 543; Havre de Grace v. Fahey, 108 Md. 533, 538-39, 70 A. 218, 220 (1908); Koontz v. Burgess, 64 Md. 134, 136, 20 A. 1039 (1885); see Hetrich v. County Commissioners of Anne Arundel County, 222 Md. 304, 312, 159 A. 2d 642, 646 (1960). A mere usurper does not acquire the status of a defacto officer and his acts generally are void unless and until he continues to act for so long a time as to afford a presumption of his right to act. Reed, supra, at 226 Md. 244, 172 A. 2d 542-43; Van Amringe v. Taylor, 12 S. E. 1001, 1007 (N.C. 1891); 2A Antieau, Municipal Corporation Law, § 22.01 (1974); 63 Am.Jur.2d Public Officers and Employees, § 499 (1972).

Whnre there is a de jure office, all that is required to make an officer de facto is that the individual claiming the office be in possession of it, performing its duties, and claiming to be such officer under color of right. Since color of right may consist of holding over after the expiration of a term, one who is actually in possession of a public office, by virtue of holding over after the expiration of a previous official term, and who discharges the duties o:: such office, is' at least a de facto officer. Reed, supra, at 226 Md. 243-46, 172 A. 2d 542-43; Benson v. Mellar, 152 Md. 481, 487-92, 137 A. 294, 296-98 (1927); 3 McQuillin, supra, § 12.102.

It has long been recognized in this State, as elsewhere, that the public interest requires, in the absence of any provisions to the contrary, that public offices should be filled at all times, without interruption. Reed, supra, at 226 Md. 242-43, 172 A. 2d 542; Benson, supra, at 152 Md. 491, 137 A. 298. In accord with this principie the Court of Appeals has recognized that an elected or appointed officer may remain in office at the expiration of his term and is entitled to exercise the powers of the office until his successor qualifies, whether or not the statute creating the office so provides. Reed, supra, at 226 Md. 242, 172 A. 2d 541; Walker v. Talbot County, 208 Md. 72, 79-80, 116 A. 2d 393, 397 (1955); Benson, supra, at 152 Md. 491, 137 A. 296-97; Ijams v. Duvall, 85 Md. 252, 261-62, 36 A. 819, 820 (1897); Ash v. McVey, 85 Md. 119, 130, 36 A. 440, 442 (1897); Lynn v. Mayor and City of Cumberland, 77 Md. 449, 454, 26 A. 1001, 1002-03 (1893); Robb v. Carter, 65 Md. 321, 335, 4 A. 282, 284 (1886); Sappington v. Scott, 14 Md. 40, 54-55 (1859); Thomas v. Owens, 4 Md. 189, 221-22 (1853). Under a statute which specifically provides that officers shall continue to hold office until their successors lawfully qualify, incumbents who so continue and have qualified are de jure officers. Under a statute which does not specifically so provide, incumbents who hold over are de facto rather than de jure officers. Claude v. Wayson, 118 Md. 477, 487-90, 84 A. 562, 565-66 (1912); Smoot v. Somerville, 59 Md. 84, 88-89 (1882).

Here it is evident that Board members Wilson and Moore were acting as de facto officers when they adopted the resolution amending the zoning map. Initially each one was properly appointed to the office to fill the unexpired term of a resigned Board member, and each of them apparently took the requisite oath. Neither they nor any other person thereafter sought election or was elected to the office of member of the Board. Thus, until the next elections, one to be held in 1974 and one to be held in 1976, no successor could qualify. From the time of their initial appointment until the time of the enactment of the map amendment, both Wilson and Moore were in possession of the office of a member of the Board and were performing the duties of that office openly, notoriously, and in full view of the public. Both of them were former incumbents, validly appointed and properly qualified, whose claim to office was based upon a right to hold over until the qualification of a successor, even though the applicable provisions of the Allegany County Code did not specifically so provide.

Since the powers of de facto officers extend to the issuance of a zoning ordinance and a properly amended zoning map, and since the public acts of a de facto officer are valid and binding, the enactment of the resolution amending the zoning map was valid and binding, and, if not arbitrary and capricious, should be accorded full force and effect. See Walker, supra, at 208 Md. 79, 116 A. 2d 397.

Ill

We now reach the basic issue in this case which is whether the map amendment adopted by the 1973 resolution constituted a comprehensive rezoning and if so, whether it bore a substantial relationship to the public health, welfare, order, safety, convenience, morals and general welfare. For a resolution of this question additional facts must be considered.

Most of the 84 acre tract designated as Section J, comprising the focal point of this case, was the subject property of a previous individual map amendment application which requested reclassification from the Rural-Residential and Residential A zones to the Commercial A zone. After a hearing at which a group of residents in the surrounding area appeared to protest, the LaVale Zoning Board changed the property’s classification to Commercial A, thereby making possible the proposed construction of an enclosed shopping mall of approximately 500,000 square feet, accommodating over fifty stores. The Board premised its decision on a finding that there had been a substantial change in the character of the neighborhood since the original zoning in 1958. The protestants appealed to the Circuit Court for Allegany County which concluded that the rezoning was unjustified because no legally sufficient evidence to establish a change in the character of the neighborhood had been adduced before the Board. The court reversed the Board’s decision. In Border v. Grooms, 267 Md. 100, 297 A. 2d 81 (1972), the Court of Appeals affirmed the trial court.

The protestants contend that the action of the Board in rezoning the entire LaVale District was arbitrary and capricious. They maintain that the comprehensive rezoning was a subterfuge employed for the sole purpose of accomplishing a rezoning of the 84 acre tract of land located in Section J, which is the same site formerly proposed for a shopping center in Border, supra. They assert that the Board, in initiating the proposed extensive revision of the LaVale zoning map, was attempting to achieve indirectly through the device of comprehensive rezoning that which they failed to achieve directly by way of the individual map amendment case. In support of their position they point out that the changes proposed by the reclassification of Sections A through 1 were inconsequential and essentially unopposed, whereas the change proposed by the reclassification of Section J was “extensive,” “revolutionary,” and vigorously opposed. They conclude that the action of the Board in incorporating a residentially zoned tract, which it had previously but unsuccessfully attempted to reclassify to Commercial A, into a subsequently adopted comprehensive zoning map as a Commercial A zone, being arbitrary and capricious, should be deemed null and void.

We are persuaded that the 26 November 1973 resolution of the LaVale Zoning Board granting, among other things, the requested reclassification of Section J, was comprehensive in nature and, in conjunction with the zoning regulations of the LaVale Zoning District, established a comprehensive zoning plan for the LaVale Zoning District. The indicia of “comprehensiveness” in a zoning plan are well established. A comprehensive zoning plan is one which applies to or covers a substantial or wide geographical area. It must be well thought out and based upon considerations concerning the common needs of the particular area. In other words, it must be the product of careful consideration and extensive study. It must be designed to control and direct the use of land and buildings according to present and planned future conditions, so as to accomplish, as far as possible, the most appropriate uses of land consistent with public interests and the safeguarding of the interests of the individual property owners. Other characteristics of comprehensiveness may be found in the fact that it zones all, or substantially all, of a political subdivision, that it regulates all uses — good, bad and indifferent, or that it covers all of the usual factors of land utilization: height, area and use. Nottingham Village, Inc. v. Baltimore County, 266 Md. 339, 354-55, 292 A. 2d 680, 688 (1972); Trustees of McDonogh Educational Fund and Institute v. Baltimore County, 221 Md. 550, 561, 158 A. 2d 637, 642 (1960). The fact that few changes in zoning are made does not affect the comprehensive nature of the plan. Scull v. Coleman, 251 Md. 6, 10-11, 246 A. 2d 223, 225 (1968).

Here, all of the criteria of comprehensiveness are present. The area to be rezoned was the entire LaVale Zoning District comprised of a total of some 13,700 acres. Approximately 1,328 acres, or nearly ten per cent of the land within the district, was reclassified, approximately 925 acres being reclassified from Rural-Residential to Residential A, and approximately 414 acres being reclassified from Rural-Residential to Commercial A. The amount of land reclassified to the Commercial A zone doubled the previously existing commercially zoned land within the community. Of the 414 acres reclassified to the Commercial A zone only 84 are here the subject of complaint.

For a period of eight to ten months before the plan’s proposal and submission to the public, the Board gave it careful consideration and extensive study. After due notice, two public hearings were held at which much testimony was adduced. The Board reviewed the nature and extent of the then existing land classifications and uses. The availability and adequacy of public facilities such as water, sewers and roads, were taken into account. The present and future needs of the citizens of the LaVale Zoning District and of Allegany County were explored thoroughly.

The new map reflects extensive changes occurring over a wide area and takes into account future public needs and purposes. As we have indicated, it was given careful consideration and adopted only after extensive study. The plan was designed to provide an adequate potential for orderly growth in the future and to satisfy local and regional needs. It zones all or substantially all of the political subdivision and regulates all uses, good, bad and indifferent. It is, therefore, in every respect, a comprehensive zoning plan. Montgomery County Council v. District Land Corp., 274 Md. 691, 693-702, 337 A. 2d 337, 712, 714-18; Scull, supra, at 251 Md. 10-11, 246 A. 2d 225; McBee v. Baltimore County, 221 Md. 312, 316-17, 157 A. 2d 258, 260 (1960).

Further, we find that the Board’s resolution of 26 November 1973 was not a “subterfuge” designed for the sole purpose of achieving that which it could not achieve through an individual map amendment. When the property comprising Section J was originally reclassified to the Commercial A zone by the grant of an individual map amendment on 14 February 1972, the comprehensive plan for the entire LaVale Zoning District had not yet been developed. That initial proceeding was limited to the consideration of whether there had been, in the past, a change in the character of the neighborhood sufficient to justify the reclassification. It did not concern the question here involved of what might be appropriate for the future growth and development of the LaVale Zoning District and Allegany County. The Court of Appeals has recognized that, if there has not been a change or mistake legally sufficient to warrant a piecemeal reclassification, “regional comprehensive rezoning is the only method available to provide for the needs of a nascent residential community.” Hardesty v. Dunphy, 259 Md. 718, 726, 271 A. 2d, 152, 156 (1970). The comprehensive rezoning enacted by the adoption of the 26 November 1973 resolution was an appropriate vehicle for the Board to employ in order to achieve its purpose of providing a potential for orderly future growth.

Recently, in a case involving a comprehensive rezoning, the Court of Appeals stated that the motives or wisdom of a legislative body in passing an ordinance are not subject to judicial inquiry. A court may appropriately consider matters of public record which directly relate to the arbitrary, capricious, or discriminatory quality of the conduct of the zoning authority. District Land Corp., supra, at 274 Md. 705-06, 337 A. 2d 712, 720-21. There is nothing in the record here to support an inference of arbitrariness or capriciousness on the part of the Board.

The case of George F. Becker Co. v. Jerns, 230 Md. 541, 187 A. 2d 841 (1963), relied on by the protestants, is inapposite. There, the Board of County Commissioners of Howard County in June, 1959, despite the contrary recommendations of its planning commission, reclassified to the M-2 (heavy industrial) zone a 19 acre piece of land. This land was bounded by residentially zoned and developed land around the whole of its perimeter except for a distance of about 900 feet which lay along the right-of-way of the Baltimore and Ohio Railroad. The property lying on the other side of the railroad tracks was classified and developed in the M-2 zone. Indeed, immediately opposite the subject property was a cement products plant and a garage.

Opponents of the reclassification filed a bill in equity attacking the validity of the action of the Board on the theory that it was arbitrary and created invalid spot zoning. In July, 1960, while the appeal was still pending, the planning commission submitted a new general plan to the Board for adoption. The proposed map recommended, as it had done in 1958, that the original residential classification of the property in question be retained. After a number of hearings at which no change was contemplated, the Board, in adopting the new plan as the official zoning map of the county, specified, without stating reasons, that the new plan and map should be revised so as to show that the property in question had been rezoned for industrial use. The record showed that the Board, having made up its mind as to what was proper zoning for the property two years before, never abandoned the opinion then expressed. It based its decision to revise the comprehensive rezoning map solely on conditions that had existed “back in 1959,” without considering any further evidence, because, as the president of the Board testified, such conditions had not “changed at all.” The opponents, who were surprised when they subsequently learned that a charge in the proposed zoning map had been ordered, sought and were granted leave to amend their bill of complaint, then pending, so as to also attack rezoning on the theory that the alleged unorthodox action of the Board was invalid.

The Court of Appeals found that the action of the Board in classifying the property in question as industrial was invalid spot zoning, not in accordance with the comprehensive plan. The court further pointed out that the subsequent action of the Board in adopting the comprehensive rezoning map, in which the classification of the subject property was changed from the originally designated residential zoning to industrial, was in fact no more than a reaffirmation, under the guise of comprehensive rezoning, of a challenged reclassification that had not been heard and disposed of by the courts. The court there stated, at 230 Md. 546, 187 A. 2d 844, that:

“Since the comprehensive rezoning of 1961 was subsequently admitted by the Board to have been based solely on the reclassification of 1959, it is clear that the validity of the change in zoning should be viewed, not in the light of subsequent events, but in the light of conditions when the reclassification was made.”

The court, under the peculiar circumstances there present, treated the reclassification as nothing more than an individual map amendment, found that there was no showing of mistake in the original zoning or substantial change in the character of the neighborhood, and held the action of the Board, with respect to that 19 acre industrially zoned tract, to be invalid.

Here, the validity of the requested reclassification for Section J had been finally disposed of by the Court of Appeals on 29 November 1972, Border, supra, prior to the time at which the comprehensive rezoning was prepared and submitted for public hearing after public notice given initially on 22 June 1973. The reclassification of Section J was a part of the comprehensive rezoning map as originally proposed. Thus, prior to and during the two public hearings, the question of the appropriateness of that classification was debated, discussed and considered. Much evidence concerning the appropriateness of that classification was adduced before the Board. Consequently, there cannot be an allegation here that the reclassification of Section J constituted invalid spot zoning, irreconcilable with the comprehensive plan. Indeed, under the present circumstances it is clear that the comprehensive rezoning of 26 November 1973 was not concerned with the reclassification of 1972, which dealt essentially with whether there had been, in the past, a change sufficient to justify reclassification, but rather was based on the overall considerations involved in planning for future growth. Accordingly, the validity of the change in the zoning of Section J must be viewed in the light of the events surrounding the adoption of the comprehensive rezoning and as a part of that process.

Having determined that the 26 November 1973 resolution constituted comprehensive rezoning, we turn next to the remaining question of whether that rezoning bore a substantial relationship to the public health, comfort, order, safety, convenience, moráis and general welfare. The applicable test for determining the scope of judicial review in a case alleging that a comprehensive rezoning is arbitrary and capricious because it bears no relation to the general welfare has been stated in Ark Readi-Mix Concrete Corp. v. Smith, 251 Md. 1, 4, 246 A. 2d 220, 221-22 (1968):

“Zoning is a legislative function, and when reviewing the acts of the zoning authorities, the duty of the courts is to decide whether such action was arbitrary, discriminatory or illegal. A court cannot substitute its judgment for that of the zoning authorities if their decision is supported by substantial evidence and the issue before them is fairly debatable. When a comprehensive map designed to cover a substantial area is adopted, it is entitled to the same presumption of correctness as an original zoning. Thus, persons attacking the correctness of the map’s classification have a heavy burden of overcoming the presumption of its validity.” (Citations omitted.)

See District Land Corp., supra, at 274 Md. 702, 337 A. 2d 718: Scull, supra, at 251 Md. 9-10, 246 A. 2d 224-25. See also Rockville Fuel v. Gaithersburg Board of Appeals, 257 Md. 183, 187, 262 A. 2d 499, 502 (1970). We find that the protestants have failed to meet that test.

While the protestants assert that the establishment of a shopping center “would possibly be a detriment to the public health, public safety, public inoráis and general welfare,” as it will greatly increase the traffic in the area, and will “certainly pollute the air by the addition of 7,000 more vehicles in the area on a daily basis,” their only specific contention that the Board’s action was arbitrary, capricious, unreasonable and.illegal, consists of a general and abstract statement that the Board refused to consider the mandates contained in certain federal regulations concerning environmental protection and a report concerning air pollution in Allegany County. There is nothing in the record to indicate that the Board failed to consider these federal regulations, even assuming that they were applicable or were in effect at the time of the rezoning, or that the Board did not consider the air pollution report. Moreover, a failure by the Board to take this evidence into account, had it occurred, would not in and of itself establish that the comprehensive zoning plan adopted by the Board bore no relationship to the general public welfare.

The record is replete with conflicting evidence on the question of the impact of the comprehensive rezoning, in general, and the reclassification of Section J, in particular, on the region, the community, the immediate neighborhood, and the adjoining and confronting property owners. The protestants have failed to meet the heavy burden that was theirs. The record is simply devoid of any evidence on which to predicate a conclusion that the comprehensive rezoning here bore no substantial relationship to the general public welfare.

The question of the impact of the comprehensive rezoning on the general public welfare is fairly debatable. The trial court was correct in affirming the action of the Board. Accordingly, its order will be affirmed.

Order affirmed.

Costs to be paid by appellants.

      . The LaVale Zoning District was created in 1957. Zoning within that district is governed by Code of Public Laws of Allegany County (Everstine, 1963, 1973 Supp.) §§ 356-361 (Allegany County Code). The zoning regulations for the LaVale Zoning District appear in Ordinance No. 1 of the LaVale Zoning Board, dated 1 June 1972.

      . The substance of the “study” made by the Board does not appear in the record. According to the testimony at the public hearings the Board met on many occasions over an eight to ten month _period before determining the precise nature of the reclassifications to be proposed and submitted for consideration at the public hearings.

      . The proposed map amendment submitted for consideration at the public hearings included a tract of land within Section J upon which at least 11 single-family residences were located. Ultimately that tract of land was excluded from the reclassification of the remainder of Section J to the commercial zone.

      . The protestants’ reliance upon Ridout v. State, 30 S.W.2d 255, 258 (Tenn. 1930), is misplaced. That case held that a “holdover” judge was a de facto officer whose acts were valid and binding. Language in Ridout to the effect that an exception to the rule that a de facto officer’s acts are valid and binding exists “where the attack was direct on the person acting or affected” is dicta, which at best, is inapplicable where, as here, third parties affected by the public acts of de facto officers are collaterally questioning the validity of these acts. See State v. Hart, 185 P. 769 (Montana 1919); Van Amringe, supra.

      Also misplaced is the protestants’ reliance upon Apice v. American Woolen Company, 60 A. 2d 865, 870 (R.I. 1948), in which the decision of a workmen’s compensation hearing officer was challenged on direct appeal. Because there was then no lawfully created position of hearing examiner, the decision of the person who assumed such an office was held to be void. This holding accords with the general principle, recognized in Maryland, that there can be no defacto officer where there is no corresponding dejure office. See Kone, supra, at 231 Md. 471, 190 A. 2d 803; Reed, supra, at 226 Md. 246, 172 A. 2d 543; Izer, supra, at 77 Md. 115, 26 A. 283; 3 McQuillin, supra, § 12.104. Here, where there is no question that the positions of members of the LaVale Zoning Board were lawfully created, the result reached in Apice is inapposite.


author: Powers, J.,

text:
    PATRICIA DIETRICH HESS et al. v. RITA V. CHALMERS et al.
    [No. 797,
    September Term, 1974.]

      Decided June 27, 1975.

    The cause was argued before Thompson and Powers, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals, specially assigned.

      Edward A. Palamara, with whom were Cohen, Fodiman, Palamara & Goldman on the brief, for appellants.

      L. Franklin Gerber, Jr., and Clarence M. Thomas, with whom were Savage, Jones, Tingle & Schwartzman, P.A. on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Helen Lee Dietrich died in November, 1971, holding record title to certain leasehold real estate in Anne Arundel County, and other real estate elsewhere in Maryland. Surviving her were two daughters, Patricia Dietrich Hess and Helen Neal Dietrich Curley, as well as two sisters, Rita V. Chalmers and Antoinette L. Frazier, and a brother, William E. Smith. Her divorced former husband, George A. Dietrich, also survived her.

In her will, which named Francis X. McDonough as executor, Mrs. Dietrich left her residuary estate to her daughters, her sisters, and her brother.

Asserting that under a 1963 deed they were remaindermen in the Anne Arundel County real estate, and that it did not pass by their mother’s will, Mrs. Hess and Mrs. Curley, the daughters, filed a bill of complaint for declaratory and ultimate relief in the Circuit Court for Anne Arundel County, on 18 January 1973. They named as defendants the decedent’s two sisters, her brother, and her executor.

In 1963 Mrs. Dietrich and her then husband had conveyed various real estate to a corporate straw party, which had simultaneously reconveyed to Mrs. Dietrich for life, and after her death to her daughters and her husband, with the habendum clause expressed in these terms:

“TO HAVE AND TO HOLD the said described lots or parcels of ground and premises, unto the said Helen Lee Dietrich, for and during the term of her natural life, with full power and authority in the said Helen Lee Dietrich (without the joinder or consent of the remandermen [sic] hereinafter mentioned) to sell, lease, mortgage or otherwise dispose of said property, except by Last Will and Testament, or any part thereof, or any interest therein, including the life estate and remainder therein, at any time during her natural life in such manner that the purchaser or purchasers, lessee or lessees, mortgagee or mortgagees, grantee or grantees, thereof will not be liable to see to the application of the purchase or mortgage money or rent; and immediately after the death of the said Helen Lee Dietrich, then the said property, or so much thereof, or any interest therein, as may not have been disposed of by the exercise of the powers herein mentioned, subject to such mortgages as may be then a lien against the said property, to the said Helen Neal Dietrich, her daughter, Patricia S. Hess, her daughter, and George A. Dietrich, her husband, as joint tenants, and not as tenants in common, their assigns, the survivor of them * * *.”

In a release and an agreement executed in 1968, apparently in connection with a then pending divorce proceeding in Baltimore, George A. Dietrich agreed that the real estate was the individual property of Helen Lee Dietrich. Shortly thereafter, in 1968, Mrs. Dietrich, exercising her power to dispose of the property, conveyed it to a corporate straw, which reconveyed absoiüte ownership to her.

The bill of complaint sought to have the court declare that Mrs. Dietrich’s 1968 deed, purporting to exercise her power of disposition of the property, was invalid, as beyond the scope of the power, having as its only purpose the divestiture of the remainder, by converting her life estate into a fee simple estate.

The case was called for hearing before Judge James L. Wray in the Circuit Court for Anne Arundel County on 28 November 1973. Judge Wray directed that George A. Dietrich be added as a party plaintiff. Counsel were heard, but no witnesses were called. The judge stated that he would be glad to hear any evidence or receive any exhibits on the proper exercise of the power. It appears that all agreed that the question was primarily one of law, and that the relevant facts were not disputed. Judge Wray said:

“Well, I certainly have no objection to your submitting a stipulation of facts but I would think it would not have to be very long. And I take it that if I find it necessary, that I may also take notice of the Court file from Baltimore City and the exhibits to the bill of complaint as exhibits.”

All council agreed.

We are told that the parties filed statements and memoranda of law. Other motions were also filed, and argued before the judge.

On 20 May 1974 a memorandum opinion and decree, dated 17 May 1974, was filed. The opinion in effect declared that the plaintiffs had no rights. The decree dismissed the bill of complaint. Upon motion of the present appellants the court, on 14 June 1974, signed an order staying the operation of the decree, pending further order of the court. The stay order was filed on 17 June 1974. Appellants’ petition for reconsideration and reargument was heard on 19 July and on 22 July 1974 the court filed a decree dismissing the petition and vacating the stay order.

The appeal before us was entered on 19 August 1974. It purported to be an appeal “from the Memorandum, Opinion and Decree entered in this action on July 22, 1974”. There was no memorandum or opinion entered on that date. The decree which was entered on that date dismissed the petition for reconsideration and vacated the stay order which had suspended the operation of the decree of 20 May 1974.

In their brief and arguments in this Court the appellants attack only the decree filed on 20 May 1974.

Appellees contend here that the decree of 20 May 1974 is not before us, because no timely appeal was taken from that decree. They say that the only thing brought up in this appeal is the decree of 22 July 1974.

Under Maryland Rule 1012, an order for appeal shall be filed within thirty days of the date of the judgment appealed from. Counting from 20 May 1974, as prescribed by Maryland Rule 8, 21 May was day number 1. 17 June would have been day number 28, but on that day the operation of the decree was suspended. We shall assume that 17 June should not be counted. To use a current phrase, the countdown was at 27 and holding.

On 22 July the suspension was vacated. The countdown was resumed, not to start again from the beginning, but to take up where it left off. 23 July was day number 28. 25 July was day number 30, the last day to file the order for appeal. The order filed on 19 August 1974 was not timely with respect to the decree of 20 May 1974.

The rule we have applied is required by what the Court of Appeals said, through Judge Markell, in Hancock v. Stull, 199 Md. 434, 86 A. 2d 734 (1952), at 436-37:

“This is an appeal from an order dated May 17, 1951, dismissing a bill. A petition for a rehearing was filed on June 4, 1951 and denied on August 28, 1951. Plaintiffs also filed a petition praying an order ‘deferring the enrollment of the decree and extending the time for the filing of appeal.’ On June 12, 1951 an order was signed which provides that pending consideration and hearing on the petition for rehearing the decree of May 17, 1951 ‘shall not be enrolled’ and that plaintiffs ‘shall have thirty (30) days from the date of the ruling upon the petition for a rehearing to file an appeal to the Court of Appeals’. Plaintiffs filed on August 28, 1951 an appeal from the order overruling the petition for rehearing and on August 29, 1951 an appeal from the decree dismissing the bill ‘as well as’ from the denial of the petition for rehearing.
“The appeal from denial of a rehearing must be dismissed. Such an order is discretionary and is not appealable in the absence of abuse of discretion. Jacobs v. Bealmear, 41 Md. 484; Bailey v. Bailey, 186 Md. 76, 80-81, 46 A. 2d 275.
“Nor does the filing of a petition for a rehearing suspend the operation of a decree or order unless a special order has been passed, before it becomes enrolled, suspending it. Jacobs v. Bealmear, supra, 41 Md. 486; Bailey v. Bailey, supra. Neither this court nor the lower court can order that a decree shall not be enrolled — unless it can bid the sun stand still and can halt the passage of time. Nor can either court extend the time for appeal. The lower court can, however, suspend the operation of a decree or order. In Bennett v. Bennett, 5 Gill 463, 466-467, passage of an order nisi for annulling a decree was held to suspend the decree. With considerable doubt and hesitation we have concluded that the order of June 12, 1951, which expressly purports to do two things that no court has power to do, also shows an intention to suspend the operation of the decree or order of May 17, 1951 and has the effect of doing so. As the decree or order of May 17, 1951 was thus suspended from June 12, 1951 to August 28, 1951, the appeal on August 29, 1951 was taken within thirty days.”

What the Court said in Hancock v. Stull, supra, concerning an appeal from the denial of a rehearing has been said many times. We cited some of the cases in applying the same rule in Angell v. Just, 22 Md. App. 43, 47, 321 A. 2d 830 (1974).

In the case before us there is no contention that Judge Wray’s decree of 22 July 1974 involved an abuse of discretion, and we see none.

As to decree of 20 May 197k appeal dismissed.

As to decree of 22 July 197k decree affirmed.

Appellants to pay costs.

      . This case did not involve the rights of the daughters under their mother’s will.

      . The decree of 22 July 1974 also reserved a ruling on the defendants’ motion under Rule 604 b. That aspect of the decree is not discussed in either brief.


author: Morton, J.,

text:
    STATE OF MARYLAND v. JOHN ROLLAND SIRBAUGH
    [No. 818,
    September Term, 1974.]

      Decided June 27, 1975.

    The cause was argued before Morton, Davidson and Moore, JJ.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Marvin B. Miller, with whom were Blackwell, Miller, Markey & Hoffman on the brief, for appllee.
   Morton, J.,

delivered the opinion of the Court.

The appellee, John Rolland Sirbaugh, was charged in a seven-count criminal information with manslaughter by automobile and various other motor vehicle violations. His case came on for trial before a jury in the Circuit Court for Prince George’s County (McCullough, J., presiding). At the conclusion of the entire case, Sirbaugh made a motion for judgment of acquittal. The trial judge announced: “I am going to reserve ruling on your motion.” The case thereupon was submitted to the jury.

After the jury had been deliberating several hours, the trial judge was advised that one of the members had become ill and could not continue to participate in the deliberations. According to the transcript:

“(* * * At 9:30 o’clock p.m. a note was sent from the jury after which Court reconvened and the following proceedings were had before the Court and the Jury)
THE COURT: Counsel, it’s obvious to me after seeing Mrs. Turman’s physically unable to continue to serve on this jury. It therefore appears we only have eleven jurors, and the State and the Defendant are entitled to a verdict of twelve jurors.
I do not believe the Court need respond to the note from the jury, because the Court sees no other alternative other than to declare this a mistrial, and the Court does declare this to be a mistrial and discharges you, Mr. Foreman and ladies and gentlemen of the jury, from your service in this case.
“(Whereupon the jury left the courtroom, after which the following proceedings were had)
THE COURT: Now, the Court at the conclusion of the case reserved ruling on the defendant’s motion for a judgment of acquittal. The Court concludes that the accident, that the death of Patricia Ann Clark was as a result of the injuries she sustained in this accident. The Court further concludes that this vehicle driven by the defendant, Mr. John Rolland Sirbaugh, was the vehicle that caused the injuries sustained by Miss Clark that resulted in her death.
In reviewing the evidence the Court is unable to find that the defendant was speeding or that speed was a factor in this accident, and from all of the facts the Court is unable to conclude that the manner in which the defendant operated the car would constitute gross negligence and that the conduct of the defendant does not amount to the wanton or reckless disregard of human life or for the rights of others.
Accordingly, the Court will grant the defendant’s motion for a judgment of acquittal on the first count of the indictment, manslaughter by automobile, and deny the motion for judgment of acquittal on all of the remaining counts.
Mr. Bailiff, you may announce adjournment of court.”

Sometime later the State filed a one-count criminal information charging Sirbaugh, as it had under the first count of the original information, with manslaughter by automobile. Sirbaugh filed a motion to dismiss the second information on the ground of double jeopardy. After a hearing in open court, Judge William B. Bowie granted Sirbaugh’s motion to dismiss the information. The State has taken this appeal contending that it was error to grant the motion to dismiss on the ground of double jeopardy.

In the brief submitted to this Court, appellee Sirbaugh states:

“The Appellee finds no quarrel with the Appellant’s argument regarding the State’s right to appeal or with the Appellant’s argument that the Double Jeopardy prohibition of the Fifth Amendment of the United States Constitution applies to the State of Maryland. Nor does the Appellee take exception to the Appellant’s argument as to when jeopardy attaches as established in the cases of Blondes v. State, 19 Md. App. 714, and Neal v. State, 272 Md. 323. Further, the Appellee agrees that normally, * * jeopardy is dissipated by the declaration of a mistrial, in the absence of any abuse of discretion.’ Neal v. State, 272 Md. 327.
Furthermore, the Appellee concedes that Judge McCullough acted properly in declaring a mistrial because of the illness of one of the jurors.
Thus, we are left with the ultimate question in this appeal: Did the trial Judge have the power to grant the Appellee’s Motion for a Judgment of Acquittal after declaring a mistrial, where the trial judge had taken the Motion under advisement.”

Maryland Rule 563 a 2 provides:

“2. Reservation of Decision on Motion for Directed Verdict — Effect.
Where the court reserves decision on a motion for a directed verdict, and submits the case to the jury, that action by the court operates as a motion for judgment [N.O.V.] under this Rule.”

It is clear, however, that this Rule does not apply to criminal cases and Sirbaugh so concedes. And it is clear that the Maryland Rules make no provision for judgment N.O.V. in a criminal case tried before a jury. Williams v. State, 4 Md. App. 558.

In Vuitch v. State, 10 Md. App. 389, 396, Chief Judge Murphy (then Chief Judge of this Court), quoting from Devers and Webster v. State, 9 Md. App. 366, said:

“ ‘When a motion for judgment of acquittal is made in a jury case it is the function of the lower court to determine whether or not the evidence before it is sufficient in law to sustain a conviction. If it determines that it is, it should deny the motion and submit the case to the jury; if it determines that it is not, it should grant the motion and the case does not reach the jury.* * *’ ”

Thus, in a criminal jury case, the trial judge has two options: (1) grant a motion for judgment of acquittal, or (2) deny the motion and submit the case to the jury. He has no authority to reserve his ruling ori the motion for judgment of acquittal and at the same time submit the case to the jury. If he follows such a course, it is tantamount to denying the motion.

We think, however, the simple answer to the factual situation presented in this appeal is found in the action of the trial judge in declaring a mistrial and then endeavoring to make a ruling on the motion for judgment of acquittal, which ruling he had previously purported to reserve. It is clear that such action was a nullity since once he had declared a mistrial and dismissed the jury, he lost all authority to take any action in the case. The declaration of the mistrial and the dismissal of the jury ended the trial and ended the judge’s participation therein. Thus, his purported ruling on the motion was completely ineffectual and meaningless.

With the concession of the appellee that the trial judge acted properly in granting the mistrial (Cornish v. State, 272 Md. 312) it, thus, effectively dissipated the jeopardy to which appellee had been subjected (Neal v. State, 272 Md. 323; Baker, Whitfield and Wilson v. State, 15 Md. App. 73). We have no alternative than to find that it was error to grant the appellee’s motion to dismiss the second criminal information on the ground that the trial thereon would place the appellee twice in jeopardy thereby violating his Fifth Amendment right under the federal constitution. See Jones v. State, 17 Md. App. 504.

Order granting motion to dismiss, reversed and case remanded for trial; costs to be paid by appellee.