author: O’Donnell, J.,

text:
    EDWARD W. PURVIS, The Younger v. STATE OF MARYLAND
    [No. 674,
    September Term, 1974.]

      Decided September 5, 1975.

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

      William Franklin Gosnell, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and James Sherbin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   O’Donnell, J.,

delivered the opinion of the Court.

The appellant, Edward W. Purvis, Jr., was convicted on May 31, 1974, following a jury trial in the Criminal Court of Baltimore (Judge Perry G. Bowen presiding) upon counts of two indictments charging, inter alia, two separate acts of distribution of heroin, as well as a count in a third indictment which charged larceny after trust.

The evidence offered in support of the narcotic counts showed that Purvis on November 1, 1973 sold 151.6 milligrams of heroin to two undercover police officers for $130 and that he had made another sale, on the next day, to the same officers of 183.5 milligrams of heroin for the same amount of money. The larceny after trust charge was predicated on evidence that on November 6, 1973 the same two detectives had given Purvis $150 in prepayment of a “spoon” of heroin but that Purvis had absconded with the police money without delivering the contraband. Following a denial of a motion for new trial, the appellant was sentenced on one of the narcotic charges to a ten-year term to run consecutively to the sentence he was then serving; upon the second narcotic charge he was also sentenced to a term of ten years, dating from the date of disposition (August 1, 1974) and to that extent concurrently with the previous sentence which he was serving. The sentence was suspended generally on his conviction for larceny after trust.

In his appeal here Purvis asserts: (a) that reversible error was committed when the trial court permitted hearsay testimony of information given to the police by an informant; (b) that he was denied effective representation by counsel and a constitutional right to a fair trial when the trial court denied him a continuance based upon the inability of his trial counsel to locate and produce at the trial two material witnesses; and (c) reversible error was committed in permitting testimony concerning a statement made by him at the time of his arrest, without his having been supplied with a copy of that statement, as well as conducting an examination concerning the admissibility of the statement in the presence of the jury.

Detective Larry W. Strickland, an undercover agent of the Drug Enforcement Administrative Task Force of the Baltimore City Police Department, one of the two undercover policemen to whom the appellant allegedly had sold the heroin and from whose possession the prepaid purchase funds had been obtained, when asked by the Assistant Prosecutor to relate to the jury how it came about that he had purchased one gram of heroin from the appellant on November 1,1973, responded as follows:

“A Well, I was introduced to the defendant by an S.E.
Q Well, they don’t know what S.E. is.
A An S.E. is a paid informant. On the 1st of November, 1973 about 5:00 P.M., Detective Holly and myself met S.E. 1-3-X539, advised that a subject by the name of Slim was selling heroin in the South Baltimore area. With this we drove in an official government vehicle to a public telephone to the Northeastern District. We called Edward Purvis and advised him I wanted to purchase heroin at approximately 5:30.
MR. COLEMAN: If Your Honor please, I would object. I don’t believe there has been some ground work laid for the introduction of evidence by a so called informer.
THE COURT: Overruled.
MR. COLEMAN: And this, if Your Honor Please, would amount to hearsay.”

In overruling the objection of appellant’s counsel the trial court stated: >

“Overruled. I think it’s offered not to prove the truth of what was said, but the fact that it happened and as such is testimony to an oral act, not within the ambit of the hearsay rule. Objection is overruled.”

The State argues that the answer to the question by Detective Strickland when he said that he was “advised that a subject by the name of ‘Slim’ was selling heroin in the South Baltimore area” was not offered “to prove that the appellant was, in fact, selling heroin ... as Detective Strickland was advised by the informant,” but was offered in response to the inquiry addressed to Detective Strickland to explain how it came about that he had purchased heroin from the appellant.

The general rule is that a statement is admissible if introduced for the purpose of showing that a party relied on and acted upon the statement and is not introduced for the purpose of showing that the facts stated in the declaration are true. See C. McCormick, Evidence § 249 at 589-90 (2d ed. 1972).

In Dennett v. State, 19 Md. App. 376, 311 A. 2d 437 (1973), Judge Thompson, for this Court, in holding that telephone messages were received and were relied upon and constituted a link in the chain of facts tending to show that the appellant had participated in a false pretense, stated:

“Wigmore, of course, states it well: ‘Wherever an utterance is offered to evidence' the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.’ VI Wigmore, Evidence § 1789, at 235 (3d ed. 1940). See also VI Wigmore, Evidence § 1766, at 177-78; McClain v. State, 10 Md. App. 106, 113, 268 A. 2d 572 (1970); Nixon v. State, 2 Md. App. 611, 615-16, 236 A. 2d 304 (1967).” 19 Md. App. at 385, 311 A. 2d at 443.

In Tumminello v. State, 7 Md. App. 380, 256 A. 2d 342 (1969), the conviction of the appellant was reversed because of the exclusion of the appellant’s conversations with both a clerk of court, in which he obtained information as to the suspension of a prisoner’s sentence, and with the complaining witness in which the witness quoted his attorney, in a proceeding where the appellant had been convicted for false pretenses involving the release of a prisoner in exchange for a sum of money. In holding that such conversations were “verbal acts” and not hearsay, Judge Thompson, who delivered the opinion for this Court, stated:

“We think all of these excluded conversations were admissible under the familiar rule that they were offered for the purpose of establishing motive, intent, and to explain subsequent actions. In 6 Wigmore, Evidence, § 1789, Friend v. Hamill, 34 Md. 298, 308 is quoted as follows:
‘Where the question is, whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence and not mere hearsay. . . .’

And, thus, under Professor Wigmore’s theory, such conversations are not hearsay at all but verbal acts. To the same effect see McCormick, Evidence, Ch. 25, § 228, p. 464. Other writers would call such evidence admissible as part of the res gestae. See Van v. State, 1 Md. App. 347, 230 A. 2d 109 and Hall v. State, supra. In the latter case, we referred to Robinson v. State, 57 Md. 14, wherein the Court of Appeals found reversible error because of the failure of the trial judge to admit evidence ....

In the same case, Hall v. State, supra, we quoted the Court of Appeals in McBriety v. Phillips, 180 Md. 569, 26 A. 2d 404 as follows:

‘ “Under the rule of res gestae, conversations of parties in the course of a transaction are admissible when the words are spontaneous and so closely related to the principal transaction as to explain its character. 1 Jones on Evidence, § 358; 6 Wigmore on Evidence, § 1776; 20 Am. Jur., Evidence, §§ 662, 680; Such utterances, irrespective of their trustworthiness as assertions, are received as verbal parts of the entire act. In upholding this rule Justice Swayne said: ‘In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. * '* * The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results.’ Travellers’ Insurance Co. v. Mosley, 8 Wall. 397, 408, 19 L. Ed. 437, 411.” ’ (Emphasis supplied.) 7 Md. App. at 383-85; 256 A. 2d at 344-45.

Another rule, however, is equally applicable. In C. McCormick, Evidence § 248 at 587 (2d ed. 1972) it is stated:

“In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.” (Emphasis supplied; footnotes omitted.)

Based on our holdings in Dennett and in Tumminello, we cannot agree that the quoted answer by Detective Strickland fell within the definition of a “verbal act” or as characterized by the trial judge, as an “oral act”; they certainly were not contained as “parts of the entire act” and the issue of the lawfulness of the appellant’s arrest does not appear to have been challenged.

Pointing out that evidence, such as that given by Detective Strickland, even though hearsay, is admissible when the lawfulness of the defendant’s arrest has been challenged but is not admissible on the issue of his guilt or innocence, the Court of Appeals, in Farrow v. State, 233 Md. 526, 197 A. 2d 434 (1964), stated:

“We note that in many cases coming before this Court where the lawfulness of an arrest and of a search incidental thereto are in issue, direct evidence to show the basis upon which the arresting officers acted either is not offered at all, or is alluded to guardedly as ‘information received’ or in some other and equally uninformative manner (doubtless designed to avoid an objection that it is hearsay), or is actually excluded as hearsay. On the question of the guilt or inriocence of the defendant it clearly is hearsay and hence is inadmissible; but on the issues of probable cause and the lawfulness of arrest ard of the admissibility of evidence obtained through any search made in connection with the arrest, such testimony, even if hearsay, is directly relevant and is admissible. Therefore, the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart, of course, from the question of the guilt or innocence of the accused; and if the case is being tried before a jury, such a matter should be heard out of the presence of the jury.” (Emphasis supplied.) 233 Md. at 532-33, 197 A. 2d at 437-38.

See also Cleveland v. State, 8 Md. App. 204, 259 A. 2d 73 (1969); Winebrenner v. State, 6 Md. App. 440, 443, 251 A. 2d 610, 612 (1969) and Viehmeyer v. State, 3 Md. App. 702, 708, 240 A. 2d 649, 652(1968).

The admissibility of such evidence has been sustained in a case where the defendant asserted entrapment. See Commonwealth v. Miller, Mass., 282 N.E. 2d 394 (1972) where the court permitted an undercover agent, who posed as a patient and who made a number of purchases of illegal drugs from a doctor to testify that narcotic users and purchasers “had mentioned her name,” the court holding that although such statement could not be considered as evidence of the alleged criminal activity charged, it was admissible to show “good cause” for the police undercover activity directed against the defendant and was material on the issue as to whether or not the inducement by the police agent was so “shocking and offensive” as to constitute entrapment.

Compare Whiting v. United States, 296 F. 2d 512 (1st Cir. 1961) in which the appellant was charged with making several sales of heroin to a police agent and who similarly raised the defense of entrapment. The agent testified that he had received four or five anonymous phone calls that the defendant was selling and using narcotics and that the defendant had made trips to New York to procure the drugs. The trial judge admitted the statement to show that the police had “good cause” to believe the defendant was involved in drug traffic and also to show, since there was a defense of entrapment, the defendant’s predisposition. The U.S. Court of Appeals reversed holding such evidence inadmissible in that it undertook to establish the defendant’s bad reputation.

In Brown v. United States, 202 F. 2d 474 (5th Cir. 1953), in a prosecution for knowingly and unlawfully acquiring marihuana without having paid a tax, police officers, who had previously obtained a search warrant and seized marihuana at the appellant’s residence, testified over objection that “they had information that the defendants were dealers in marihuana.” Although the trial court admitted the evidence as establishing reasonable grounds for the issuance of a search warrant and instructed the'jury not to consider it as evidence against the defendant, the U. S. Court of Appeals for the Fifth Circuit stated:

“This evidence, in our opinion, was pure hearsay and wholly incompetent on the trial below, however proper it may have been on the hearing of the application for a search warrant. The search warrant was prima facie valid, and the propriety of its issuance was not being questioned. To allow the officers to give hearsay evidence that the defendants were dealers in marihuana cannot be justified upon the ground that the testimony showed the basis for the issuance of the search warrant. Such incompetent evidence is reversible error in a close case like this one.” 202 F. 2d at 475.

In State v. Kimble, 214 La. 58, 36 So. 2d 637 (1948), in a prosecution for illegally handling and storing intoxicating liquors for the purposes of sale, a police officer had testified that he had received complaints that the defendant was engaged in the handling and storing of liquor for sale. In reversing the conviction, the Supreme Court of Louisiana stated that it was error not to have excluded the evidence “on the ground that it was clearly hearsay”; and that while it is not violative of a hearsay rule for a police officer to state that he made an arrest or a search and seizure as a result of information received or a complaint, the exception is limited to the statement of the fact and the rule seems to be that “ ‘while an officer may testify before a jury that, acting upon information, he did certain things, he may not go further and testify as to precisely what he was told about the particular place or the particular person. ’ ” 214 La. at 62, 36 So. 2d at 638.

Similarly, in State v. Bankston, 63 N. J. 263, 307 A. 2d 65 (1973), where a policeman in a prosecution for the possession of drugs testified that he went to a tavern and there saw a man who answered the description of a person who had been described to them by an informer as possessing narcotics and that the defendant had answered that description, it was held to be an erroneous admission of hearsay testimony-in violation of the defendant’s Sixth Amendment right to confrontation. The Supreme Court of New Jersey rejected the argument that the testimony was merely used to explain what had prompted the police to go to the tavern and that although the hearsay rule is not violated when an officer explains the reason he approached the suspect or went to the scene of a crime but states that he did so “upon information received,” the hearsay rule is violated when the officer becomes more specific by repeating what some other person told him concerning crime by the accused. It was held that the officer’s testimony — although he never specifically repeated what the informer had told him — created the inescapable inference that the informer had given him information that the defendant would have narcotics in his possession and that “[t]hus the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told the officers that defendant was committing a crime.” As such, the testimony was “clearly hearsay.” 63 N. J. at 271, 307 A. 2d at 69.

In State v. Gerhardt, 115 Ohio App. 83, 184 N.E.2d 516 (1961), the defendant’s conviction for possession of burglary-tools was reversed because the trial court had admitted into evidence a teletype message sent by West Virginia State Police headquarters to one of its offices, which was in turn relayed to Ohio law enforcement officers and which stated that “two known safe men” had “pulled jobs in this area” and were leaving Kentucky “with intention of pulling a safe job 'within a 200 mile radius of Cincinnati, Ohio.” The teletype named the suspects, described the vehicle in which they were believed traveling and that they would be “carrying [a] complete burglary outfit.” The Court of Appeals of Ohio, finding that the teletype memorandum was hearsay evidence, held that its admissibility was prejudicial to the appellant and violated his constitutional rights to be confronted by the witnesses against him, reversed the conviction.

It was held in Griffin v. State, 97 Ga. App. 772, 104 S.E.2d 511 (1958), a prosecution for the possession of untaxed liquor, that testimony by the sheriff that “we received reports that Mr. Griffin was selling whisky” was inadmissible hearsay. The conviction, however, was affirmed because the trial court sustained the defendant’s objection thereto, ruling the evidence out of the case and instructed the jury not to consider it.

The Court of Criminal Appeals of Texas generally holds that this type of hearsay evidence is clearly inadmissible when there is no issue of probable cause for the arrest, or the search of the defendant. See Smith v. State, 511 S.W.2d 296 (Tex. Cr. 1974) holding inadmissible as hearsay, in a prosecution for possession of drugs, a statement by a police officer that an informant had told him that the defendant had sold him some heroin for $10 and had some in his possession; Maxon v. State, 507 S.W.2d 234 (Tex. Cr. 1974) where in a prosecution for the illegal possession of drugs the police officer was asked: “What . . . aroused your curiosity [as to the] address? ” and in response thereto the officer testified that he had received information that people living at the address “were dealing [in drugs].” Since probable cause to enter and search the house was not in issue it was held error to have permitted such testimony before the jury. In Ramos v. State, 395 S.W.2d 628 (Tex. Cr. 1965) a conviction for the possession of heroin was reversed when the police officer, in response to a question as to when he first saw the appellant on the day in question, replied: “ ‘We received information that they were shooting heroin at the service station at Broadway and Avenue A in the rest room.’ ” This evidence was held to be inadmissible hearsay since there was no issue of probable cause. The Texas court pointed out — as is the rule in this State — that the issue of probable cause for an arrest is to be heard by the court and not by the jury. See Cleveland v. State, supra, and Maryland Rule 729 d 2.

In a prosecution for transporting illegal liquor, where the arresting officer was asked why he had come to a particular place at the time just before the arrest, he replied: “ ‘We had information that deliveries of whiskey and beer was being ■made during shift change. . . .’ ” The court in Wood v. State, 166 Tex. Cr. 319, 313 S.W.2d 615 (1958) held that such statement was inadmissible hearsay conveying to the jury that the appellant was engaged in making deliveries of liquor during the change of police shifts and was reasonably calculated to prejudice the defendant’s rights before the jury. As was well stated in Reddy v. Snepp, 357 F. Supp. 999, 1003 (W.D.N.C. 1973), tips from informants have a recognized place in law enforcement, but the use of such information “is allowed only to justify an arrest, a search or a seizure which leads to discovery of otherwise competent evidence.”

The response by Detective Strickland submitted to the jury the out-of-court declaration of his numerically identified informant that one “Slim” was engaged in selling heroin in the South Baltimore area and that the appellant, Purvis, was “Slim.” The fact that Purvis was a seller of heroin was the very object which the prosecution had undertaken to establish and did so solely on the basis of the testimony of Detective Strickland and his colleagues. The statement which Detective Strickland attributed to his informer became evidence by a third person, an out-of-court declarant, who was not subject to cross-examination and who did not confront the appellant that Purvis was factually a seller of narcotics, whose operation was centered in the South Baltimore area and that he had indeed sold them to this unidentified individual. The only precaution taken to dispel from the jury’s mind this likely interpretation of the statement came when the trial judge ruled that the statement was offered “not to prove the truth of what was said, but the fact that it happened and as such is testimony to an oral act not within the ambit of the hearsay rule.” No further instruction was given to the jury.

As we see it, the statement was of misleading probative force which tended to influence the trier of facts to believe that before Purvis’ contact with the officers he was already a dealer in heroin and thus more likely to have sold the drug to the detectives as charged.

In Dobbs v. State, 148 Md. 34, 129 A. 275 (1925), the Court of Appeals, in holding in a prosecution for murder committed during a robbery that evidence of another robbery committed by them was reversible error, stated:

“[W]hen the errors are of such a character, and so interwoven with the case, as to lead a fair and impartial mind, trained and experienced in judicial investigation, upon an examination of the whole case and all the rulings involved therein, to the conclusion that there is a reasonable probability that such errors may have affected the determination of the case, they are prejudicial and reversible.” (Emphasis supplied.) 148 Md. at 48-49, 129 A. at 281.

See also Kotteakos v. United States, 328 U. S. 750, 764-65 (1946) concerning prejudicial error.

Because of the conclusion we reach finding that it was error to have admitted the hearsay testimony by Detective Strickland, we need not reach the other contentions raised by the appellant.

Judg'ment of the Criminal Court of Baltimore reversed and case remanded for a new trial; costs to be paid by Mayor and City Council of Baltimore City.

      . Of the Circuit Court for Calvert County on assignment to assist in the Criminal Court of Baltimore.

      . Not in the order in which they were set forth in his brief.


source: Caselaw Access Project

author: Digges, J.,

license: Public Domain

text:
    SAMUEL A. GREEN, JR. v. JULIA W. LOMBARD et al.
    [No. 701,
    September Term, 1974.]

      Decided September 5, 1975.

      The cause was argued before Powers and Mason, JJ., and J. Dudley Digges, Associate Judge of the Court of Appeals of Maryland, specially assigned.

      David L. Bowers, with whom was Patrick A. O’Doherty on the brief, for appellant, cross-appellee.

      Daniel H. Honemann, with whom were Robert Sloan and Clapp, Somerville, Black & Honemann on the brief, for appellees, cross-appellants Julia W. Lombard and Mimi Worthington Foster.
   Digges, J.,

delivered the opinion of the Court.

Judge E. Mackall Childs, sitting by special assignment in the Circuit Court for Baltimore County, after receiving reams of testimony, concluded that Samuel A. Green, Jr., breached his fiduciary duties as substitute committee for the estate of Miss Winifred Waterman, a woman under disability who is now in her mid-eighties, and that consequently he should not only be removed from that position of trust but in addition should be surcharged for losses and certain expenses which the estate sustained due to his misdeeds. Green does not take issue on this appeal with either the trial court’s conclusion that he be removed as committee or the chancellor’s findings of fact; accordingly, since Green’s defrocking as committee is not challenged and as the record is replete with evidence to support the chancellor’s factual determinations which we do not find to be clearly erroneous (Maryland Rule 1086) we will not reassess these aspects of the trial court’s decision. What is before us then are: the contentions of Green that certain aspects of the surcharge are substantively incorrect or are procedurally barred; and the assertions of the appellees, Julia W. Lombard and Mimi Worthington Foster, two nieces of Miss Waterman, who cross-appeal on her behalf and urge that under the facts and the law a more substantial surcharge should have been adjudged. Before discussing the specific events which form the basis for or against the various surcharges, we set the stage by summarizing the chancellor’s determinations concerning Green’s stewardship as committee for Miss Waterman’s estate.

After a proceeding under a writ of de lunático inquirendo conducted in 1937, at which Miss Waterman was found to be of unsound mind, the court entrusted her assets, shown to be $116,836.95 at the first audit, to Henry K. Ravenal as the committee for her estate. Mr. Ravenal, who during his entire term of service neither requested a counsel fee nor charged a commission in excess of five percent, served faithfully and well until his death in the winter of 1958, at which time the estate’s corpus was valued at $195,127.90. Soon thereafter, in March of 1959, a substitute committee, George T. Worthington, III, was entrusted with the Waterman estate. The integrity of the first committee, however, was not to be emulated by the substitute as considerable indiscretion, it was subsequently discovered, keynoted Worthington’s tenure. It was in the wake of service by these two committees, one honorable and one not, that Green, after Worthington resigned, took up the reins of managing Miss Waterman’s estate in the spring of 1963.

Almost before Green had finished buttoning his newly-entrusted committee cloak he began to make thousands of dollars of mortgage loans from the Waterman estate, mostly on properties located along Charles Street in Baltimore City, to one of his own clients, Baltimore Property Management, Inc. (BPM), a corporate alter ego of King W. White, its president and Green’s longtime personal friend. As time passed Green lent BPM and White personally larger and larger sums of the estate’s money (determined by Judge Childs to eventually reach a total of $162,234.64), none of which loans to BPM were secured by White’s personal guarantee. To make matters even worse, many of the basic facts concerning the loans were not brought to the attention of the court either before or after they were made, as Green was required to do by various statutes; the information about those that were turned out to be largely incomplete, inaccurate, or suspiciously self-serving. Not only were the mortgage loans imprudent and the all too infrequent accountings to the court concerning them sketchy and inaccurate but, as if to add insult to injury, Green, without discussing his unacceptable activities, successfully petitioned the court each year for the maximum commission allowed a committee as well as for substantial attorneys’ fees for himself and his various associates. Bearing in mind that a committee acts in a capacity demanding unreproachable integrity and fidelity, and which in a very general way entails three duties: “1. To carry out the trust; 2. To use care and diligence; 3. To act with good faith,” 4. Pomeroy, Equity Jurisprudence, § 1061 (5th ed. 1941), it is painfully obvious even from this abbreviated factual exposition, that Green was an unfaithful fiduciary.

When a committee acts improperly, and this indiscretion is brought to the attention of the court, it becomes the duty of that court to assess the damage his misdeeds have caused and then to impose the appropriate sanction, including surcharging if that becomes necessary, so that the fiduciary personally is made responsible for repairing the harm he has wreaked upon the estate. Stone v. Stone, 230 Md. 248, 186 A. 2d 590 (1962). Accordingly, we now turn to evaluate which duties Green breached and the price he must pay for his improprieties.

While administering a trust which involves investment, a fiduciary’s duty to the estate requires that he “exercise the care and skill of a man of ordinary prudence dealing with his own property.” Code (1957, 1969 Repl. Vol., 1973 Cum. Supp.) Art. 93A, § 212. Although that standard has only been statutorily mandated since July 1, 1969, it has long been engrained in Maryland law. Goldsborough v. DeWitt, 171 Md. 225, 258, 189 A. 226 (1937) (executor); Zimmerman v. Coblentz, 170 Md. 468, 484, 185 A. 342 (1936) (trustee); Fox v. Harris, 141 Md. 495, 496, 119 A. 256 (1922) (trustee); Gilbert v. Kolb, 85 Md. 627, 634, 37 A. 423 (1897) (trustee); Gray v. Lynch, 8 Gill 403, 430-31 (1849) (trustee). This standard is not at variance with that used throughout the country. See 2 Scott, On Trusts, § 174 (3d ed. 1967); 5 Bogert, Trusts & Trustees, § 541 (2d ed. 1965); Restatement, Second, of Trusts, § 174 (1959). Our predecessors, when considering this duty with respect to the making of mortgage loans concluded, in Gilbert v. Kolb, supra, that the fiduciary must

“use due diligence (1), to see that the title was valid, and (2), that the value of the property at the time of the loan is such as would in all probability be adequate security for the repayment of the loan whenever the mortgage should be called in.” 85 Md. at 634-35.

As far as Green’s investment activities with BPM and White are concerned, he clearly violated his duty to the estate. He failed to “see that the title was valid” and in fact has been unable to produce any certificate of title or title insurance, which, until 1970, Rule V74 d 2 specifically required him to obtain. Furthermore, and of much greater importance, Green did not fulfill the second prong of his duty as delineated in Gilbert in that he failed to obtain adequate security for the mortgage loans to BPM and White. This is evidenced by the fact that the original Charles Street mortgage loans were from 90 to 106 percent of the price paid by BPM, the mortgagor, only a short time before the loans were extended to purchase and improve the various tracts; such an amount in an arm’s length transaction, is a prime indicator of the realty’s fair market value in the absence of a definitive showing to the contrary. Gilbert v. Kolb, supra; 3 Scott, On Trusts, § 229 (3d ed. 1967) (50 to 662/3 percent ordinarily permissible); 7 Bogert, Trusts & Trustees, § 674 (2d ed. 1965) (40 to 50 percent ordinarily permissible); Restatement, Second, of Trusts, § 229, comment a (1959) (50 to 662/3 percent ordinarily permissible). Green attempts to defend against this failure to secure adequate security by proffering appraisals which state that the Charles Street tracts are worth far more than their purchase prices. But this answer is to no avail, as not only were some of the appraisers not informed of the purchase price but the employment of all of them was actually procured by the borrower, White; thus since the appraisals were not independently prepared, they must be considered suspect. Cf. Webb & Knapp v. Hanover Bank, 214 Md. 230, 246, 133 A. 2d 450 (1957).

The record also clearly supports the chancellor’s finding that not only did Green fail to use the requisite care in regard to the BPM and White mortgage loans, but he failed in at least two other responsibilities relative to his role as the estate’s investment administrator. A fiduciary is required, when he sees that a loan is no longer worthwhile, to promptly salvage the investment as best he can. As stated in Zimmerman v. Coblentz, 170 Md. 468, 476, 185 A. 342 (1936):

“authority to invest in the specified form ... is not authority to continue the investment under all circumstances. On the contrary, there is a duty on a trustee to present to the court forthwith any known condition, or condition which reasonable watchfulness would discover, and which might render it advisable that the investment be changed, and obtain its further order. Jones v. Stockett, 2 Bland 409, 426.”

Green not only was tardy in informing the court when the mortgagor defaulted, but, when for a prudent investor the writing was on the wall as to the loan’s poor health, he poured even more money into the investment. Secondly, Green failed to “diversify investments so as to minimize the risk of large losses.” 3 Scott, On Trusts, § 228 (3d ed. 1967); see 6 Bogert, Trusts & Trustees, § 612 (2d ed. 1965); Restatement, Second, of Trusts, § 228 (1959). While diversification is not under all circumstances required, York v. Md. Trust Co., 149 Md. 608, 131 A. 829 (1926), a prudent man, considering the size and content of Miss Waterman’s estate, the needs of the beneficiary and other relevant matters, would in all probability have concluded, as did Judge Childs, that Green should not have placed so many eggs in the BPM mortgage basket. See Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Gillmore, 142 N.J.Eq. 27, 59 A. 2d 24, 33-34 (1948) (overinvestment in mortgages). Green, within one year of taking office, invested 61 percent of the gross estate in mortgage loans to BPM and White, his client and friend, with 41 percent secured by the Charles Street properties, and subsequently increased and re-increased the amount of those loans.

Another area of responsibility in the exercise of which Green was extremely remiss, is the fiduciary duty to keep full, accurate and precise records. This record-keeping function is required by statute, rule and case law. Code (1957, 1969 Repl. Vol., 1973 Cum. Supp.) Art. 93A, § 209 (b)(d) (effective July 1, 1969); Code (1957, 1966 Repl. Vol., 1968 Cum. Supp.) Art. 16, § 135; Rule V74 (Code (1957, 1971 Repl. Vol., 1973 Cum. Supp.) (effective July 1, 1969)); Rule V74 (Code (1957, 1963 Repl. Vol., 1969 Cum. Supp.)); Berlage v. Boyd, 206 Md. 521, 532, 112 A. 2d 461 (1955), and cases cited therein; 2 Scott, On Trusts, § 172 (3d ed. 1967); 10 Bogert, Trusts & Trustees, § 962 (2d ed. 1965); Restatement, Second, of Trusts, § 172 (1959). Throughout Green’s tenure he maintained, what might be characterized as sloppy, incomplete and inaccurate records; in fact, at trial he was unable to produce any records for the years 1967-70, which he attempted to justify by claiming that he destroyed all of his estate paperwork for those years because a trust clerk in the court told him that he no longer needed to keep it. As Judge Childs said:

“it requires no citations to say that [Green] as an attorney of sixteen years’ experience was charged with knowledge of what the law requires of a guardianf; he] had no right to rely on the gratuitous advice of a clerk.”

In addition to his investment and record-keeping failures, we agree with Judge Childs’ finding that Green remunerated himself and his associates substantially in excess of that which is proper. If it is deserved or necessary in order to properly administer an estate, a committee may charge up to the maximum commission established by law, employ himself as attorney for the estate if one is required, Taylor v. Denny, 118 Md. 124, 130-34, 84 A. 369 (1912); F. &P. Bank v. Martin, 3 Md. Ch. 224, 225 (1852), and acquire the services of outside counsel should that be necessary and desirable, Amer. Colonization Society’s Case, 132 Md. 524, 536-38, 104 A. 120 (1918); 3 Scott, On Trusts, § 188.3 (3d ed. 1967); 6 Bogert, Trust & Trustees, § 555 (2d ed. 1965); Restatement, Second, of Trusts, § 188, comment c (1959). That which Green charged in each of these respects was undeserved, unnecessary and exorbitant. During Green’s approximately ten-year tenure the estate paid out, as far as the record now discloses, a total of $45,458.45 in commissions to Green, a total of $9,650 in counsel fees to this same fiduciary, and in addition a total of $8,921.50 to outside counsel employed by Green to perform services for the estate. Although he always requested the maximum commission (10%) and hefty counsel fees, his petitions for these, except for the first two years, never explain why; in fact, for two years, 1971 and 1973, he took the full commission as well as attorney’s fees but without ever asking for or obtaining court authority. Subtracting from the total estate income that part which was derived from a separate trust Green did nothing to manage, in every accounting period between January 1, 1963, and December 31, 1966, Green’s combined commission and counsel fee add up to a shade below half of the income his efforts yielded; in 1967 he received about 67 percent of what he produced; in 1968, 1969, 1971 and 1972 his remuneration exceeded the income from that part of the trust corpus he administered, with the 1970 figures merely a few dollars apart; however, it is true that in 1973 he received only 16 percent of what his efforts produced.

Based on the evidence, including that which we have briefly related, Judge Childs summed up Green’s multitudinous transgressions as follows:

“a) As guardian of Miss Waterman, the defendant [(Green)] failed in his duty to maintain accounts and records which were accurate, precise, complete and regular.
b) He failed in his duty to exercise his powers as guardian with the care and skill that ordinary prudence required.
c) He failed in his duty to furnish the court with complete and accurate information when requesting authorization to invest.
d) He failed in his duty to report to the court the defaults under mortgages as soon as they occurred, thereby exposing the estate to the probability of greater loss than it would have sustained but for his failure to act.
e) He either wilfully misrepresented material facts to the court leading to action by the court in reference to the fiduciary estate, or made said statements with such careless disregard for their accuracy as to constitute a wilful misrepresentation.
f) He failed in his duty to require security for estate funds expended.
g) He spent estate funds without sanction of the court.
h) He failed in his duty to exercise good faith and loyalty to the fiduciary estate.”

We think that this is an appropriate recapitulation which is amply supported by the evidence and certainly is not clearly erroneous. (Rule 1086).

From the storm raging about his regime as committee, Green seeks the shelter of several ex parte court orders, which on their face authorized him to make various expenditures and investments, asserting that these orders, as they “contained no reservation of equities or power of further direction,” Pinkston v. Swift, 231 Md. 346, 351, 190 A. 2d 533 (1963), quoting Pugh v. Waclawski, 211 Md. 346, 350, 127 A. 2d 376 (1956), were final decrees or at least orders in the nature of final decrees, such that they became enrolled thirty days after they were entered, dates which have long since passed. Rule 671 a. While it is true that once enrolled, these equity decrees ordinarily become absolute, they nevertheless are subject to review upon a showing “of fraud, mistake or irregularity.” Rule 625 a. As used in that rule, “fraud, which is an act of deliberate deception designed to secure something by taking unfair advantage of someone, includes deceit, though the latter may not reach the gravity of fraud.” Cohen v. Investors Funding Corp., 267 Md. 537, 540, 298 A. 2d 154 (1973), quoting Tasea Investment Corp. v. Dale, 222 Md. 474, 478 n. 1, 160 A. 2d 920 (1960). Fraud is a generic term and in equity embraces “all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.” 1 Story, Equity Jurisprudence, § 187 (6th ed. 1853). It is not necessarily a single fact but a conclusion which is drawn from all the circumstances of the case, Brogden v. Walker’s Ex’r, 2 Harr. & J. 285 (1805), and includes constructive as well as actual fraud. Mead v. Gilbert, 170 Md. 592, 606, 185 A. 668 (1936). It taints and vitiates all that it touches. Figinski v. Modrak, 151 Md. 140, 146, 134 A. 130 (1926). This is especially true when the victim occupies a position of confidence and trust with the perpetrator of the fraud and is either an aged and infirm person, an infant, or is one suffering from mental illness.

“Fraud may consist in a suppression of the truth as well as in the assertion of a falsehood. The concealment becomes a fraud where it is effected by misleading and deceptive talk, acts, or conduct, or is accompanied by misrepresentations, or where, in addition to a party’s silence, there is any statement, word, or act on his part, which tends affirmatively to the suppression of the truth, or to a covering up or disguising of the truth, or to a withdrawal or distraction of a party’s attention from the real facts. . . . ‘ There is a distinction between the suppression of a fact and mere silence. Where there is an obligation to speak [(as there was in this case)], a failure to speak will constitute the suppression of a fact; but where there is no obligation to speak, silence cannot be termed suppression,’. . . Schnader v. Brooks, 150 Md. 52, 57-58, 132 A. 381 (1926) (citations omitted).

The court orders procured by Green, and whose shield he seeks to hide behind, were granted ex parte, on the basis of petitions containing, as the chancellor found, serious material misrepresentations, in violation of several Maryland rules, which wilful defaults or acts of gross negligence constitute clear and convincing evidence of, at least, constructive fraud. Accrocco v. Splawn, 264 Md. 527, 532, 287 A. 2d 275 (1972); Gray v. Lynch, 8 Gill 403 (1849). Accordingly, because fraud permeates the decrees relating to court approval of Green’s activities and expenses, they are all now subject to review by virtue of Rule 625 a, with the exception of those expenditures for the care of Miss Waterman until January 1, 1967, which the appellees do not contest because they have already been scrutinized by court auditors.

In addition to showing either “fraud, mistake or irregularity,” “one seeking to set aside an enrolled judgment must establish also that he is acting in good faith and with ordinary diligence, and that he has a meritorious defense.” Owl Club v. Gotham Hotels, 270 Md. 94, 100, 310 A. 2d 534 (1973); Marine Midland v. State Nat’l Bk., 268 Md. 503, 511-12, 302 A. 2d 609 (1973). Although the appellees’ good faith is not questioned and there is no doubt but that there are sufficient defenses to some of the expenditures approved by the enrolled decrees, Green does challenge the timeliness of the appellees’ suit by arguing that it is barred by the statute of limitations and laches. But since the appellees bring this action on behalf of a non compos mentis whose status had not changed since 1937, the statute of limitations has not begun to run, Code (1957, 1972 Repl. Vol., 1973 Cum. Supp.) Art. 57, § 2, rewritten and recodified as Code (1974) Courts and Judicial Proceedings Article, § 5-201 (effective January 1, 1974); Funk v. Wingert, 134 Md. 523, 526-27, 107 A. 345 (1919), nor for the same reason can laches bar consideration of the claims. Fid & Dep. Co. v. State, 164 Md. 304, 314-16, 165 A. 176 (1933); 3 Scott, On Trusts, § 219.3 (3d ed. 1967); 9 Bogert, Trusts & Trustees, § 949 (2d ed. 1965); Restatement, Second, of Trusts, § 219, comment d (1959). As for the requirement of simple diligence, we think that the appellees cannot be accused of dawdling considering the speed with which they moved once they became apprised, in late 1973, of the actual facts.

THE REMEDY

Based on the extensive evidence that Green was in violation of his fiduciary responsibilities, we see no escape from the chancellor’s conclusion that not only should Green be removed from his position as committee, but he should also be surcharged so that the estate can be placed in the same situation as if he had faithfully performed his proper duties. However, because we think that Judge Childs restricted himself from scrutinizing various periods of Green’s tenure which we conclude ought to be subjected to review and because the chancellor deviated, obviously inadvertently, from the actual credit (including failure to allow in Green’s favor the amount which a sale of the mortgages, if sold, or of the property, if sold through foreclosure, brings) and debit figures in making certain calculations, the case must be remanded so that the amount of the surcharge can be reassessed. On remand the chancellor, with the assistance of a master and auditor if he deems it necessary, should review all transactions involving this trust, both the income and outflow of money, during Green’s entire tenure as the committee of Miss Waterman’s estate. In reevaluating the monetary charges to be imposed against Green, every expenditure from the estate by this former committee for whatever purpose, from the beginning of his term to the end (except for monies spent for the care of Miss Waterman up to January 1, 1967 which the appellees do not contest because they have already been scrutinized by court auditors), is to be subject to judicial scrutiny and is to be debited against Green, with a credit, however, in his favor for those expenditures which through primary or secondary evidence he can satisfy the court were justified. Berlage v. Boyd, 206 Md. 521, 532, 112 A. 2d 461 (1955); Richmond v. Richmond, 165 Md. 388, 391, 168 A. 883 (1933); Dennis v. Dennis, 15 Md. 73 (1860). “Obscurity visits responsibility upon the trustee,” Berlage v. Boyd, supra at 532 and, therefore, “a trustee who fails [as did Green] to keep proper accounts has the burden of proving entitlement to the credits he claims.” Lopez v. Lopez, 250 Md. 491, 502, 243 A. 2d 588 (1968); see Lawson v. Burgee, 131 Md. 436, 442-43, 103 A. 516 (1917); 2 Scott, On Trusts, § 172 (3d ed. 1967); 10 Bogert, Trusts & Trustees, § 962 (2d ed. 1965); Restatement, Second, of Trusts, § 172, comment b (1959). For the further guidance of the chancellor on remand we specifically suggest an approach to the calculation of two items with which he will be concerned in performing his many-faceted task.

In the calculation of the surcharge for the losses to the estate caused by Green’s mortgage investments a proper formula must be utilized. Ordinarily, if the loans were authorized and free of any taint other than simple negligence, “the trustee is liable only for such loss as results from the investment of the excess beyond the amount which it would have been proper so to investf, to the extent of such excess].” Restatement, Second, of Trusts, § 228, comment b (1959); see 3 Scott, On Trusts, §§ 228.1, 229.1 (3d ed. 1967); 7 Bogert, Trusts & Trustees, §§ 674, 701, 705-06 (2d ed. 1965). However,, si nee Green made the loans and withheld from the court, ab initio, information identifying his close ties with BPM and White, information concerning the true value of the properties, and other pertinent details relating to the mortgages, the entire investment must in effect be considered to be tainted by fraud and, therefore, the proper surcharge calculation should involve the following: add all of the mortgage loans advanced, calculate the interest that should have been paid, arrive at a sum total for all the advances made by the estate in connection with the mortgages as well as the properties secured by them (e.g., taxes,, insurance, improvements such as demolition of old structures and construction of the parking lot); once all these sums are added together subtract from that figure the net proceeds received for the sale of the property at foreclpsure or otherwise or from a sale of the mortgages themselves together with all returns received by the estate on the investment {e.g., payments on principal or interest).

Secondly, all of the committee or attorney charges which were paid ■from the estate throughout Green’s ten-year tenure should, upon remand, be re-examined by the chancellor for him to use his discretion as to which of these, if any, to permit, once presented with the pertinent information upon which to base such a judgment. Should the chancellor, in the exercise of his discretion, decide to disallow any or all of the commissions and attorney’s fees then Green should be surcharged for those amounts.

Of course, as it appears from the record that Green put some of his own money in the coffers of the estate {e.g., $800, $850 and $7,000), this total should be credited in arriving at the final surcharge.

Order of the Circuit Court for Baltimore Comity, dated, June 20, 197k, removing Samuel A. Green, Jr., as Committee of the Estate of Winifred Waterman and providing for the transfer of estate assets to a new gua rdian, affirmed.

“Charging order” dated June 20, 197k, vacated and the case is remanded to the Circuit Court for Baltimore County for further proceedings, including the passage of a new “charging order”, consistent with the views expressed in this opinion.

Costs to be paid by Samuel A. Green, Jr.

      . The original petition to remove Green as committee was filed on November 23, 1973, by George T. Worthington, III, a nephew of the incompetent acting as an interested party. Maryland Code (1957, 1969 Repl. Vol.) Art. 93A, § 210, later recodified in Code (1974) Estates & Trusts Article, § 13-210; Maryland Rule V84 d 1. Shortly thereafter, on December 10, 1973, Lombard and Poster, also acting interested parties, petitioned both to remove Green and for an accounting. Although the two petitions were consolidated for trial, Worthington was not represented at the hearing and has not appealed to this Court.
      When Green was appointed, the fiduciary of an estate for a von compos mentis was denominated a committee. Now a non compos mentis is called a “disabled person” and the fiduciary for that individual is designated as a “guardian.” Code (1974) Estates & Trusts Article, § 13-101.

      . Charles H. Steffey, Inc., a real estate agency and White’s employer, also made loans to BPM, with mortgages on some of that corporation’s other Charles Street properties as security. However, unlike Green, Steffey took the precaution of obtaining White’s personal guarantee for the corporate loans.

      . Effective July 1, 1974, this section was recodified and now appears in Code (1974) Estates & Trusts Article, § 13-212.

      . Some of these appraisals were made by Charles H. Steffey, Inc., White’s employer.

      . It must be pointed out that Green did not bring any of the defaults to the court’s attention in 1967, when they occurred, other than to note after entries in his account for that year “(6 mos.)”. It was not until a couple of years later, on January 23, 1969, that Green finally informed the court by petition that the Charles Street mortgages were in default. Green stated in this petition that BPM “to the best of your Petitioner’s knowledge, information and belief is presently solvent.” Actually, BPM’s charter had been forfeited as of December 30, 1968, for nonpayment of taxes, and was not revived until April 3, 1970. In attempting to explain the situation to the court in this petition, Green observed that the area had “deteriorated severely over the past three to four years,” the worst depreciation having occurred since April of 1968. Green did not mention that he had substantially increased the mortgages on some of the Charles Street properties during that three to four-year-period. After noting that the rent derived from the Charles Street properties would be insufficient to cover their upkeep and the mortgages, and that a foreclosure would result in a considerable loss to the estate, Green recommended that the improvements on the land be demolished and a parking lot be constructed on the property and adjoining land owned by BPM on which Steffey held mortgages. Green asked the court to authorize the demolition, an extension of the mortgages and an increase in the mortgages’ interest rate from six to eight percent, to which the court consented. After the improvements were demolished Green proceeded, though not expressly authorized to do so, to use estate funds to pay part of the cost, of constructing the parking lot.

      . Effective July 1, 1974, after Green had been removed as committee, this section was recodified and now appears in Code (1974) Estates & Trusts Article, § 13-209.

      . Effective July 1, 1974. Rule V74 was partially amended. Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.), Rule V74.

      . Money went into and came out of the funds of the estate without any apparent reason. For example, in 1971 $850 was deposited in the estate’s aeeount for reasons which Green cannot now relate; and in 1973 a total of $7,000 was deposited which Green said he paid into the account from his personal funds because of newspaper stories relating to his handling of the estate.

      . Most of the figures from which these totals are computed were derived from obviously unreliable reports furnished by Green.

      . A considerable portion of Miss Waterman’s income (e.g., in 1973 $20,769.45) is derived from a trust, of which she is a beneficiary, being administered by the St. Louis Union Trust Company, as trustee.

      . It is noted that Green did not elect to utilize Rule V74 c 2 (f), adopted pursuant to Code (1957, 1969 Repl. Vol., 1973 Cum. Supp.) Art. 93A, § 209 (c), now appearing in Code (1974) Estates & Trusts Article, § 13-209. That rule provides:
      “(f) Protection of Court Order.
      A fiduciary wishing to establish an accounting as conclusive with respect to his liabilities concerning the matters disclosed in connection therewith may petition the court for an order to such effect. He shall send a copy of the account to all persons as to whom he wishes to make the account conclusive, together with notice to show cause, within a time to be fixed by the court, why the relief prayed should not be granted. Where notice cannot be given to any person, such person may be served by publication. An order may be passed after such notice or service, and opportunity for hearing, establishing the conclusiveness of the account as to the persons to whom notice was given or service was made. Unless for good cause shown the court orders otherwise, the expense of a proceeding under this paragraph shall be borne by the fiduciary personally and not the fiduciary estate.”

      . Since the appellees’ petition specifically states that the action is instituted on behalf of Miss Waterman, Green’s suggestion that the claim was brought on the appellees’ behalf is dismissed as frivolous.

      . Audits which have already been properly prepared can be utilized if that would minimize the task; additional testimony may be taken if that becomes necessary or advisable.


author: Davidson, J.,

text:
    RALPH C. BOYD v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, Personal Representative of the Estate of Eula M. Milburn
    [No. 796,
    September Term, 1974.]

      Decided September 5, 1975.

      The cause was argued before Thompson, Davidson and Mason, JJ.

      Jerome Blum and Gerald S. Klein for appellant.

      Roy D. Cromwell and Robert E. Wieder for appellee.
   Davidson, J.,

delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for Anne Arundel County entered by Judge James L. Wray on 1 August 1974, dismissing a bill of complaint for the specific performance of a contract for the sale of land brought against the appellee, Mercantile Safe Deposit and Trust Company, personal representative of the estate of Eula M. Milburn. It all began on 22 November 1943 when a major portion of the land which is the subject matter of this dispute (Cook property) was conveyed from George J. Cook and Elna Y. Cook, his wife, to Ralph P. Milburn and Eula M. Milburn, his wife, as tenants by the entireties (seller). On 10 February 1944, a parcel of land, lying to the southeast of the Cook property, was conveyed to the seller (lot 13). On 19 May 1964, the seller conveyed approximately 1.67 acres of the Cook property to one of their sons and his wife as tenants by the entireties (Milburn parcel).

This particular litigation arose in 1972 when on 30 November the appellant, Ralph C. Boyd (buyer), filed a bill of complaint against the seller for specific performance of a written contract for the sale of land which was executed by Ralph P. Milburn and Eula M. Milburn, his wife, and Ralph C. Boyd and Joyce F. Boyd, his wife. On 4 June 1971, the seller, alleging that the description of the property was vague and indefinite, repudiated the contract. The description of the land sold, contained in the contract submitted into evidence by the buyer, was as follows:

“. .. Seller does hereby bargain and sell unto the said buyer and the latter does hereby purchase from the former the following described property, situated and lying in Anne Arundel County, Maryland, being the property known as Alpine Beach., Pasadena, approximately 63 acres ...”

This document called for a purchase price of $130,000. A deposit of $1,000 was to be paid before the agreement was signed with an additional cash deposit of $29,000 to be paid at the time of settlement. The balance of $100,000 was to be paid by a purchase money mortgage subject to interest at six per cent with principal payments of $20,000 per year to be made for the next five years. The contract specifically provided that settlement and possession were to occur within sixty days from the date of the agreement and that time was of the essence. In addition, the contract stated that it constituted the entire agreement between the parties and that neither they nor their agents would be bound by any terms, conditions or representations not written in the contract.

Attached to the contract submitted into evidence by the buyer was a plat of the Cook property, dated August, 1943, prepared by J. R. McCrone, Jr., Annapolis, from recorded plats and deed descriptions and not from a survey. This plat had the metes and bounds of the Cook property, then owned by the seller, marked clearly upon it. It also contained visible landmarks and references to recorded plats which made it possible to determine the precise boundaries of the Cook property as it then existed. The plat contained no metes and bounds description or other identification of either lot 13 or the Milburn parcel.

At an evidentiary hearing held on 25 June 1974, the trial court allowed the introduction of parol evidence to describe the circumstances and conditions surrounding the sale. The realtor with whom Ralph P. Milburn had listed the property for sale testified, insofar as here relevant, that after the property was listed for sale Mr. Milburn gave him a copy of a plat describing the metes and bounds of the Cook property. He and Mr. Milburn then walked the property and he was shown its physical boundary lines. He stated that the copy of the plat given to and used by him was identical to that attached to the contract in evidence and that the plat accurately depicted the boundaries of the Cook property. Finally, he said that he had discussed the sale and the price of the property with both Mr. and Mrs. Milburn who then signed the contract of sale in his presence.

The realtor who sold the property to the buyer testified that before the contract of sale was signed, she and the buyer met Mr. and Mrs. Milburn at Alpine Beach. At the time of that meeting, both Mr. and Mrs. Milburn were seated in an automobile. After appropriate introductions had been made, Mr. Milburn, the realtor and the buyer went on a tour of the property. Mrs. Milburn remained in the car. The realtor and the buyer himself testified, insofar as here relevant, that the party of three then walked over the entire property. At that time Mr. Milburn gave them a plat which they all examined as they observed the physical boundaries of the land. They both stated that Mr. Milburn specifically pointed out the Milburn parcel and indicated that it was excluded from the property to be purchased. They both testified that a copy of the same plat which had been given to and utilized by them was attached to the contract of sale at the time of its execution and that except for its failure to delineate the Milburn parcel, which was specifically excluded from the sale, it accurately depicted the boundaries intended to be conveyed. There was no evidence presented to show that during the physical demonstration of boundaries Mr. Milburn pointed out the boundaries of lot 13. Nor was there any evidence to show that at that time Mr. Milburn indicated that lot 13 was to be included in the property to be conveyed.

The trial court determined that because neither the contract of sale nor the attached plat contained any reference to the Milburn parcel or lot 13, the description of the land contained within the contract and on the plat did not accurately describe the property to be conveyed and was too vague and indefinite to be specifically enforced. He ordered that the bill of complaint be dismissed. It is from that decree that this appeal is taken.

The buyer contends that the description contained in the contract and on the attached plat, coupled with the parol evidence relating to the circumstances and conditions existing at the time the agreement was executed, described the property intended to be conveyed with sufficient certainty to authorize a specific enforcement decree. We agree.

The principles applicable to specific performance of contracts relating to the ownership and use of land have been well established in Maryland. The questions of whether specific performance of a contract relating to the ownership and use of land shall be decreed and what shall be the terms of the decree rest within the sound discretion of the equity court. The exercise of the court’s discretion, however, must not be arbitrary and is controlled by established principles of equity. Where a contract for the sale of real estate is fair, reasonable and certain in all of the terms, it is as much the duty of a court of equity to decree specific performance as it is for a court of law to award damages for breach of contract.

The description of land which is the subject of a contract must be such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as is admissible under the rules of evidence, what property was intended by the parties to be covered thereby. The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary. Reasonable certainty is all that is required. As was stated in Kiser v. Eberly, 200 Md. 242, 248, 88 A. 2d 570, 573 (1952):

“When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they existed at the time the negotiations took place and the instrument was executed, are disclosed, then if the meaning and application of the instrument, read in the light of those circumstances, are clear and certain, the parties will be bound by it as a sufficient contract.”

The performance that a court decree requires for specific performance need not be identical with that promised in the contract. Such a decree may be drawn so as best to effectuate the purposes for which the contract was made, and it may be granted on such terms and conditions as justice requires.

Where under appropriate circumstances, the description of the property covered by the contract is sufficiently certain but the seller is unable to transfer title to all of the land that he contracted to transfer, specific performance may be sought and granted with respect to the balance. Similarly, where the description of only a part of the property allegedly covered by a contract is sufficient, so that it is evident that there is agreement as to a part of the transaction, specific performance as to the agreed upon portion may be authorized. Under such circumstances, if the seller has offered to cancel the contract or has repudiated it, the buyer should be given an election: he should either be refunded his money or, upon a proper amendment of his complaint, be granted specific performance, with no diminution in price, as to the property which was accurately described and agreed upon by the parties as a part of the transaction.

Applying these principles to the instant case produces a clear result. There is nothing in the contract, the attached plat or the parol evidence presented to indicate that lot 13 was intended to be a part of the instant transaction. The description contained in the contract and the attached plat, as amplified by the parol evidence concerning the conditions and circumstances surrounding the negotiation of the contract at the time it was executed, clearly establish, however, that the transaction was intended by the parties to cover all of the Cook property except the Milburn parcel, which the seller did not own and which the seller, therefore, was unable to transfer to the buyer. Because the evidence shows, and the parties agree, that this much, at least, was a part of the transaction, the trial court should have authorized specific performance to this extent. Moreover, because the seller here repudiated the contract on 4 June 1971, the buyer should be given an election. He should either be refunded his deposit or, upon proper amendment of his complaint, be granted specific performance, with no diminution in price, as to the property which was correctly described and agreed upon by the parties.

The seller contends here as below that the buyer was not entitled to specific performance because he did not exercise due diligence in pursuing his rights. More particularly, the seller complains that under a contract which expressly declared time to be of the essence, settlement was not achieved within 60 days as required; a period of one-and-one-half years elapsed between 4 June 1971, when the contract was repudiated, and 30 November 1972, when the bill of complaint was filed; a six-and-one-half month delay was occasioned by the buyer’s failure to answer interrogatories submitted on 21 February 1973; and trial was not held until 25 June 1974, a total of three years and ten months from the date of the agreement between the parties. While this issue was not decided below, we believe it should be resolved for the guidance of the trial court. Maryland Rule 1085.

Whether or not time is expressly declared to be of the essence of a contract, a party seeking the remedy of specific performance, as well as a party who desires to maintain an objection founded upon the other’s lack of due diligence or laches, must show himself to have been “ready, desirous, prompt, and eager.” Where time is expressly declared to be of the essence of the contract, a party seeking specific performance, who himself faifs promptly to perform with respect to a material requirement of the agreement, ordinarily is guilty of a lack of due diligence and is deprived of the right to specific performance. A failure or delay in such performance, however, caused by the default of a party against whom specific performance is sought, or by the fault of both parties, cannot serve to defeat entitlement to specific performance. In addition, a party who fails promptly to seek relief from a court or delays in prosecuting an action once instituted, may be deprived of the right to specific performance.

The doctrine of laches is an application of the general principles of estoppel. In applying the doctrine of laches, a court of equity refuses to grant relief to a complainant who has delayed in bringing the complaint for an unreasonable length of time, thereby causing prejudice to the adverse party. In determining what will constitute laches so as to bar relief in equity, the court has no inflexible rule as to length of time, but must decide the question from all the facts and circumstances in each particular case. Prejudice or injury to the party raising laches is an essential element. So long as the position of the parties is not changed and there is no prejudice from the delay, laches is inapplicable.

There were undisputed facts in this record to show the inexorable course of events which took place. Prior to the execution of the agreement, a deposit of $1,000 was delivered by the buyer to the real estate firm representing the seller. Settlement had been arranged for 11 October 1970 but because of Milburn’s death on 5 October 1970, settlement was necessarily postponed. A settlement date of 16 October 1970 was established. The buyer’s attorney appeared; the seller’s attorney did not. On 23 November 1970, a guardian was appointed for Eula Milburn. By a letter dated 29 December 1970, a new settlement date of 22 January 1971 was set, with settlement to take place in the office of the buyer. In a letter dated 6 January 1971, the seller indicated that settlement would not take place as scheduled because the Circuit Court for Baltimore County had ordered an appraisal of the various properties located at or near Alpine Beach owned by Eula Milburn and the guardian of her estate would not make any conveyance of real estate until that appraisal was approved by the court. In a letter dated 17 February 1971, the buyer advised the seller that he continued to be ready for settlement and requested the seller to advise him of a convenient settlement date. On 3 March 1971, the seller replied that he had to await the receipt of the appraisal ordered by the court before he could make any conveyance of real estate. On 31 May 1971, the buyer again wrote a letter requesting advice as to a settlement date. On 4 June 1971, the seller asserted that the purported contract was vague, indefinite and unenforceable and repudiated it. On 17 April 1972, the realtor holding the deposit returned the $1,000 check to the buyer. On 26 April 1972, the buyer sent the deposit check back to the realtor and, in a letter, indicated that he believed he had a contract which was in force for the sale of the Alpine Beach property. On 12 May 1972, the seller indicated surprise about that comment in view of the fact that in May and June of 1971 it was made clear that there would be no settlement under the purported contract “for several reasons, including but not limited to the fact that the contract was not legally sufficient and did not set forth the land to be conveyed.” Thereafter, on 30 November 1972, the bill of complaint for specific performance was filed. Trial was held on 25 June 1974.

This record unequivocally establishes that all of the delay occasioned before June, 1971, was solely attributable to the seller. Thus, the buyer was not responsible for either the failure to settle within 60 days as prescribed by the contract or for any prejudice which may have resulted from the incompetence and death of the seller. Moreover, there is absolutely no evidence to show either that the year-and-one-half delay between the seller’s repudiation of the contract and the filing of the instant suit for specific performance or the delays occurring after the filing of the bill of complaint were prejudicial to the seller.

Under these circumstances, we find that the buyer acted with due diligence throughout the proceedings, was not guilty of laches, and is entitled to specific performance. Accordingly, the order of the trial court dismissing the bill of complaint will be reversed and the case will be remanded for further proceedings and the entry of an order in accordance with this opinion.

Order reversed.

Case remanded for further proceedings and the entry of an order in accordance with this opinion.

Costs to be paid by appellee.

      . Eula M. Milburn was declared incompetent and on 23 November 1970 Ralph N. Milburn, a son, was appointed as guardian of her estate. She died on 4 September 1974. Thereafter, Mercantile Safe Deposit and Trust Company qualified as personal representative of her estate and by order dated 14 February 1975, was made a party appellee in interest in place of Ralph N. Milburn, guardian. See Maryland Rule 1065.

      . The wife, as survivor, became sole owner when her husband died on 5 October 1970.

      . As a result of divorce proceedings, Joyce F. Boyd’s interest in this agreement was assigned to Ralph C. Boyd at some time before the hearing in this case held on 25 June 1974.

      . Gross v. J. & L. Camping & Sports Center, Inc., 270 Md. 539, 543-44, 312 A. 2d 270, 273-74 (1973); Soehnlein v. Pumphrey, 183 Md. 334, 340, 37 A. 2d 843, 846 (1944); Smoot v. Rea, 19 Md. 398, 405 (1863); see The Glendale Corp. v. Crawford, 207 Md. 148, 154, 114 A. 2d 33, 35-36 (1955).

      . Boettcher v. Van Lill, 263 Md. 113, 117-20, 282 A. 2d 122, 124-26 (1971); Sears v. Polan’s 5¢ to $1.00 Store of Annapolis, Inc., 250 Md. 525, 528-29, 243 A. 2d 602, 604-05 (1968); Baker v. Dawson, 216 Md. 478, 488-91, 141 A. 2d 157, 162-64 (1958); Powell v. Moody, 153 Md. 62, 66-67, 137 A. 477, 478-79 (1927); Helmik v. Pratt, 153 Md. 685, 690-96, 139 A. 559, 561-63 (1927); King v. Kaiser, 126 Md. 213, 218, 94 A. 780, 782 (1915); Engler v. Garrett, 100 Md. 387, 397, 59 A. 648, 650 (1905); Kraft v. Egan, 76 Md. 243, 252-53, 25 A. 469, 470 (1892). See Kiser v. Eberly, 200 Md. 242, 244, 248, 88 A. 2d 570, 571, 573 (1952).

      . Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 454-55, 171 A. 2d 736, 745-46 (1961); Brooks v. Towson Realty, Inc., 223 Md. 61, 73-74, 162 A. 2d 431, 437-38 (1960); Restatement of Contracts, § 359 (2).

      . Westpark, Inc., supra, at 225 Md. 455, 171 A. 2d 746; Diggs v. Siomporas, 248 Md. 677, 681, 237 A. 2d 725, 727 (1968); Improvement Co. v. Boyd, 161 Md. 269, 276-78, 156 A. 795, 797-98 (1931); Foley v. Crow, 37 Md. 51, 60-63 (1872).

      . Martin v. Michaels, 259 Md. 346, 352-53, 269 A. 2d 833, 837 (1970); Westpark, supra, at 225 Md. 454-55, 171 A. 2d 745-46.

      . Martin, supra, at 259 Md. 353, 269 A. 2d 837; Diggs, supra, at 248 Md. 681, 237 A. 2d 727; Westpark, supra, at 225 Md. 454-55, 171 A. 2d 745-46.

      . On 25 June 1974, the trial court denied the seller’s motion to dismiss for failure to answer interrogatories because no prejudice to the seller was shown as a result of the delay.

      . Silver Holding Corp. v. Sheeler, 231 Md. 35, 37, 188 A. 2d 562, 563 (1963); Doering v. Fields, 187 Md. 484, 488-89, 50 A. 2d 553, 555 (1947); Penn v. McCullough, 76 Md. 229, 231, 24 A. 424 (1892).

      . Schild v. Cokinos, 263 Md. 261, 264, 282 A. 2d 499, 501 (1971); Silver, supra, at 231 Md. 37, 188 A. 2d 563; Tarses v. Miller Fruit & Produce Co., 155 Md. 448, 454, 142 A. 522, 524 (1928).

      . Kimm v. Andrews, 270 Md. 601, 612-13, 313 A. 2d 466, 472-73 (1974); Loughran v. Ramsburg, 174 Md. 181, 187-88, 197 A. 804, 807-08 (1938); Budacz v. Fradkin, 146 Md. 400, 407-08, 126 A. 220, 222-24 (1924); Brewer v. Sowers, 118 Md. 681, 686-87, 86 A. 228, 230 (1912).

      . Hungerford v. Hungerford, 223 Md. 316, 320-21, 164 A. 2d 518, 520-21 (1960); Tarses, supra, at 155 Md. 454, 142 A. 524; Ridgway v. Ridgway, 69 Md. 242, 247, 14 A. 659, 660 (1888); Nelson v. The Hagerstown Bank, 27 Md. 51, 74-75 (1867); Miller, Equity, § 661.

      . Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 63, 300 A. 2d 367, 384-85 (1973), quoting Oak Lawn Cemetery of Baltimore County v. Baltimore County Comm’rs, 174 Md. 280, 291, 198 A. 600, 605, 115 A.L.R. 1478, 1483-84 (1938).

      . See Parker v. Board of Election Supervisors, 230 Md. 126, 130-31, 186 A. 2d 195, 197 (1962); Sinclair v. Weber, 204 Md. 324, 337, 104 A. 2d 561, 567 (1954).

      . Whitney v. Halibut, 235 Md. 517, 520, 202 A. 2d 629, 635 (1964); Parker, supra, at 230 Md. 130-31, 186 A. 2d 197; Sinclair, supra, at 204 Md. 337, 104 A. 2d 567; Berman v. Leckner, 193 Md. 177, 187, 66 A. 2d 392, 396 (1949); Kaufman v. Plitt, 191 Md. 24, 28-29, 59 A. 2d 634, 635 (1948); Loughran, supra n. 13, at 174 Md. 187, 197 A. 807-08.

      . Anne Arundel County Bar Ass'n, Inc. v. Collins, 272 Md. 578, 584, 325 A. 2d 724, 728 (1974); Salisbury, supra, at 268 Md. 63, 300 A. 2d 384-85; Simpers v. Clark, 239 Md. 395, 403, 211 A. 2d 753, 757 (1965).

      . Salisbury, supra, at 268 Md. 63, 300 A. 2d 384-85; Arundel Supply Corp. v. Cason, 265 Md. 371, 376, 289 A. 2d 585, 588 (1972); Oak Lawn Cemetery, supra, at 174 Md. 291, 198 A. 605; Loughran, supra, at 174 Md. 187, 197 A. 807-08.