author:
Melvin, J.,
      Mason, J.,

text:
    JOHN C. DAVIS v. PHASE I, LIMITED
    [No. 555,
    September Term, 1975.]

      Decided March 29, 1976.

    The cause was argued before Morton, Melvin and Mason, JJ.

      Bernard F. Goldberg, with whom was Michael A. Weal on the brief, for appellant.

      Thomas A. Garland for appellee.
   Melvin, J.,

delivered the opinion of the Court. Mason, J., dissents and filed a dissenting opinion at page 702 infra.

In this appeal the appellant, John C. Davis (plaintiff below), complains that the Circuit Court for Howard County (Mayfield, J.) was wrong in deciding that he was not entitled to a brokerage commission from Phase I, Limited (appellee here and defendant below). We think Judge Mayfield was correct and shall affirm the judgment below.

On April 21, 1973, Mr. John Santini, who is not a party to the proceedings, employed appellant Davis, a licensed real estate broker, to sell “66V2” acres of land owned by Santini and others in Howard County. The “Multiple Listing Contract” signed by Santini (Seller) and given to Davis provided that:

“The undersigned owner agrees to pay said Realtor a commission for services rendered in the amount set forth below, (1) if during the term of this contract * * * said Realtor produces a customer to purchase said property at the listing price shown above or at such other price as shall be accepted by the owner or agreed upon in writing between the owner and the Realtor; or (2) if said property is sold * * * by the owner or through the Realtor or others during the term of this contract * * * to anyone who, with the knowledge of the owner, inspected or made inquiry about the property during the term of this contract * * * ; except that said Realtor shall have no claim upon the owner for any commission if the property is so sold * * * after the expiration of this contract * * * .
In the event of a sale, the commission is to be 10% of sales price, * * * .
If a deposit made on any contract of sale shall be forfeited, the commission for the Realtor’s sendees shall be one-half of the amount forfeited, but in no event to exceed an amount equal to the fall commission specified herein. ’’(Emphasis added.)

David procured the appellee (Buyer) to purchase the property. On July 5, 1973, Buyer and Seller signed a contract of sale providing in pertinent part as follows:

“1. Purchase Price and Terms of Payment. The purchase price for the Property is Six Thousand Dollars ($6,000.00) per arre as surveyed pursuant to the terms and conditions of Paragraph Four as hereinafter set forth, which shall be paid by Buyer to Seller in the following manner:
(a) Upon the execution of this Agreement Buyer shall pay to Broker Five Thousand Dollars ($5,000.00) in cash as a deposit to be held in escrow with interest thereon until the time of release of the aforesaid Five Thousand Dollars ($5,000.00) to be paid to Buyer.
(b) At settlement Buyer shall pay to Seller, in cash, a sum equal to Twenty-six Percent (26%) of the purchase price as determined above of which the deposit shall be a part.”
“4. Survey. Buyer at its expense shall cause to be made a survey of the Property which said survey shall be the basis of the computation of the purchase price as hereinabove provided for.”
“6. General.
(g) The Parties recognize Columbia Real Estate [Davis] as the Broker negotiating this sale. Buyer agrees to pay said Broker a brokerage fee for services rendered amounting to Twenty-nine Percent (29%) of Ten Percent (10%) of the sales price at the time of settlement. Buyer agrees to give said Broker its promissory note for Seventy-One Percent (71%) of the Ten Percent (10%) brokerage fee without interest payable in Two equal annual installments measured from the date of settlement. ’’(Emphasis added.)

The contract also provided for settlement on or before October 15,1973, and a deposit of $5,000 to be held in escrow by the broker. Davis received the deposit from Buyer and deposited it in an escrow account.

On January 25,1974, Davis wrote to Buyer as follows:

“I am writing on behalf of my clients John S. Santini el al., concerning the contract of sale which Phase One entered into on July 5, 1973. The time for settlement was October 15, 1973, it is now over 90 days past that scheduled settlement date. Our clients would like you to respond in writing as to exactly how you intend to proceed.
In any event I wish to make my position absolutely clear concerning the real estate commission; we have earned our commission and expect that it will be paid irrespective of any subsequent agreement that you may reach with Santini et al. Thank you.” (Emphasis added.)

Buyer’s reply was a letter to Davis dated February 18, 1974:

“ * * * . As I explained to you over the telephone on several occasions, the lending institution once interested in financing our purchase * * * has not acted and we must presume that it does not now wish to make the deal. From the point of view of Phase One, Ltd., the Santini Group is under no contractural obligation written or oral, legal or moral to hold the property subject to our contract. The extension Mr. Santini kindly granted us was unable to be fulfilled on our part.
You may rest assure [sic] that our interest in the property continues. In the event that we should for some reason we are not now able to foresee become able to purchase the property we will come back through your office so that you mil be protected under any commission arrangement you have with the Santini group. I am enclosing an additional copy of this letter so that you may deliver it to Mr. Santini.” (Emphasis supplied.)

Davis’ reply written to Buyer, dated March 18, 1974, was succinct:

“I am hereby calling for payment of the real estate commission due in the above referenced contract as specified in paragraph 6 (G). Thank you.”

On April 8, 1974, Davis filed suit against Buyer claiming a commission of $39,954.00 allegedly due him under the terms of paragraph 6 (g) of the contract of sale between Buyer and Seller. Since Davis was not a signatory to the contract, he was apparently proceeding under the third-party beneficiary doctrine. In any event, Buyer does not contest Davis’ standing to bring the action. That issue is not before us.

The record does not reflect that Seller has ever taken any action to enforce the contract of sale. Nor do we know from the record before us whether the contract is still a viable one between its signatories. In any event, settlement between Buyer and Seller had not taken place as of the time of the trial on the merits on December 17,1974.

Davis argues that paragraph 6 (g) of the contract of sale requires Buyer to pay him his commission “at the time of settlement”, which was to have been on or before October 15, 1973, and that although settlement has never taken place, Buyer owes him a commission in the amount of $39,954.00 because 1) he has “earned” it and 2) the “occurrence of settlement is not a condition precedent” to his right to receive a commission from Buyer. With respect to both points he invokes Real Property Article § 14-105 (formerly Art. 21, § 14-105, Md. Code, 1973 Repl. Vol.). Section 14-105 is a codification of a 1910 Act of the General Assembly and provides that:

“Whenever, in the absence of special agreement to the contrary, a real estate broker employed to sell, buy, lease or otherwise negotiate real or leasehold estates or mortgages, or loans thereon, procures in good faith a purchaser, seller, lessor or lessee, mortgagor or mortgagee, borrower or lender, as the case may be, and the person so procured is accepted as such by the employer, and enters into a valid, binding and enforceable written contract of sale, purchase, lease, mortgage, loan or other contract, as the case may be, in terms acceptable to the employer, and such contract is accepted by the employer and signed by him, the broker shall be deemed to have earned the customary or agreed commission, as the case may be, whether or not the contract entered into be actually performed, unless the performance by such contract be prevented, hindered or delayed by any act of the broker.” (Emphasis added.)

A threshold prerequisite to the application of the statute is an existing agreement between the broker and his employer whereby the broker is “employed to sell, buy, lease or otherwise negotiate real or leasehold estates or mortgages, or loans thereon.” It is to this kind of agreement that the statute may apply to fix the time when, in the absence of special agreement between the broker and his employer, the broker is entitled to commissions. The statute after all does nothing more than supply a provision in a particular kind of employment contract that the parties have omitted. It is really only a legislatively mandated rule of construction to be used in construing commission agreements in “certain situations”. See Wyland v. Patterson Agency, 271 Md. 617, 623 (1974).

In Wyand, supra, the Court of Appeals speaking through Judge Eldridge reviewed the Maryland law applicable to real estate commissions as it existed prior to the enactment of the 1910 statute.

“Long ago this Court decided that where one employed a real estate broker under an agreement that the broker would be entitled to a commission if there were a ‘sale’ of the property, or if the property were ‘sold,’ or if the broker ‘procured a purchaser’ or similar language, and the agreement did not more specifically set forth when or at what stage in the sale process the right to a commission accrued, a fully consummated sale had to take place before the broker was entitled to a commission. Unless the proof showed that the broker's employer was guilty of fraud or arbitrary or capricious conduct, the mere procurement of a willing buyer, or even the execution of a contract for the sale of the property, was not sufficient.” (Citing cases). (Emphasis added.)
“Consequently, it was settled early in this State that the word ‘sold’ or similar language in a commission agreement with a real estate broker would be construed to mean a consummated sale and not a contract to sell. This rule of construction was changed for certain situations [emphasis in original] by the Legislature * * (Emphasis added.)

In Wyand, supra, property owners employed a broker to sell their farm under an “Exclusive Sales Listing” agreement whereby the owners agreed to pay the broker a 10% commission if “you procure a buyer, or if the property is sold within said time by * * * any other broker * * Another broker procured a buyer with whom the sellers entered into a contract of sale. The original broker, citing the statute, claimed his commission arguing inter alia that the farm was “sold” when the contract of sale was executed. The Court found the argument unsound and held that, “As this Court has pointed out on several occasions, the statute, by its clear terms, applies only when the broker claiming the commission is the procuring cause of the sale. If some other broker finds the buyer, § 14-105 has no application”. (Citing cases).

Thus, even though a contract of sale has been executed by a broker’s employer, the statute does not automatically apply to entitle the broker to a commission even from his employer. In addition to the requirement that the broker claiming the commission must be the procuring cause of the sale, we think the statute, by its clear terms, also only applies when there is an employment relationship between the broker claiming the commission and the one from whom he claims it.

Paragraph 6 (g) of the contract of sale is not an employment contract. By its terms Davis was not “employed” by Buyer to sell or buy the property. Nor may an employment relationship between Davis and Buyer be “implied from the words and conduct of the parties and surrounding circumstances.” (See Weinberg v. Desser, 243 Md. 347, 354 (1966)). The record is clear that at the time the contract of sale was executed Davis had already been “employed” by Seller to sell the property, as evidenced by the “Multiple Listing Contract” placed in evidence by Davis. Moreover, according to Davis, he had already fulfilled the obligations of that employment. Since paragraph 6 (g) did not create, expressly or by implication, an employment relationship between Davis and Buyer, it follows that the statute cannot be invoked to supplement or explain its terms. Whether or not the statute would be applicable in construing the “Multiple Listing Contract” is not before us and we express no opinion on that question. We hold only that the statutory rule of construction embodied in the statute does not apply to paragraph 6 (g) of the contract of sale.

We emphasize again that Davis’ suit against Buyer is based solely on paragraph 6 (g), and not upon the terms of his employment arrangement with Seller. The dispute over commissions that comes to us here is therefore not the customary one between a broker and one who employed him to sell or buy real estate. Rather it is a suit by the seller’s broker against the buyer, based entirely on a provision in the contract of sale between buyer and seller in which the buyer, as part of the consideration for the property flowing from buyer to seller, agreed to pay a commission to seller’s broker “at the time of settlement”. Viewed in this light it is clear that whatever rights Davis acquired from Buyer when the contract of sale was executed were conditioned upon there being a “settlement”, i.e. a consummated sale. Under the plain terms of paragraph 6 (g) Buyer owed Davis nothing until that time arrived. So far as Buyer is concerned, the commission is neither “earned” from him nor due by him prior to that time.

Davis also contends, somewhat inconsistently, that although the statute dictates a judgment in his favor (because he “earned” his commission when the contract of sale was executed), he is entitled to judgment in any event because the Buyer defaulted on the contract. This argument would have merit if it were shown that Buyer’s failure to settle with Seller was due to some arbitrary, capricious, or fradulent conduct on its part designed to deprive Davis of his commission. There is no such evidence in this case. The record is clear that the only reason Buyer did not settle was its financial inability to do so. Moreover, as we have indicated, there is no evidence that Seller had taken or threatened any action against Buyer to enforce the contract of sale as of December 14, 1974 — more than 14 months after the scheduled date of settlement. This fact and the correspondence in evidence indicate that Seller may well have decided to retain the deposit and regard Buyer’s obligations under the contract at an end. The contract is either at an end or it is still viable between the parties. If the former, Buyer’s obligations under it, including the payment of a commission to Davis, are over. If the latter, the possibility still exists for a settlement, in which event Buyer would be bound to pay any commission still due Davis pursuant to paragraph 6 (g) of the contract.

Since the condition precedent to Buyer’s duty to pay the broker’s commission has not occurred, and since there is no evidence that Buyer deliberately prevented the settlement for the purpose of depriving the broker of his commission, the judgment for Buyer will be affirmed.

Even if paragraph 6 (g) could be regarded as an employment agreement between Davis and Buyer, the statute would still be inapplicable to sustain Davis’ contention that his right to a commission had vested at the time the contract of sale was signed. In Berman v. Hall, 275 Md. 434 (1975), a real estate contract of sale contained the following clause:

“AGENCY: the Seller recognizes George Berman as the Agent negotiating this Contract and agrees to pay Five percent (5%) of the sale price commission for services rendered, same to be due and payable upon the settlement of this Contract.
The entire deposit shall be held by ... [the purchaser’s attorney], until settlement hereunder is made and the party making settlement is hereby authorized and directed to deduct the aforesaid commission from the proceeds of the sale and pay same to said Agent. If the sale is not closed because of the Purchasers default the commission shall be one-half (V2) the amount of the deposit.
“The Agent hereby agrees to the within commission provisions but assumes no responsibility for the condition of the property or for the performance of the Contract by any or all parties hereto.” (Emphasis supplied.)

Settlement did not take place at the time scheduled by the contract. Instead, the sellers and the purchaser executed a “mutual release”, releasing “each other from any and all obligations arising out of the Contract”. The broker was not a party to the “mutual release”. In his suit for a commission from the sellers, the broker invoked the statute, arguing that he became entitled to his full commission upon the execution of the contract of sale and that references in the contract to the commission being due and payable at the time of settlement, and to be deducted from the sale proceeds, merely reflected an intention that, “as an accommodation to the sellers . . ., [the broker] agreed to postpone the physical payment of that commission until settlement”. In the case at hand, Davis makes much the same argument. The Court held that the broker’s reliance on the statute was misplaced because “as the language of the statute makes clear, where the parties enter into an agreement specifying a different time when the right to a brokerage commission accrues, the agreement and not the statute is controlling. ‘The issue then becomes the parties’ intent under that agreement.’ ” (Citations omitted) (Emphasis added). The Court in Berman, supra, went on to say, at 438, 440:

“The broker’s argument ignores the plain meaning of the contract language. The words ‘due and payable at the time of settlement’ denote something more than a postponement of the time for payment as an accommodation. If the commission is not due until settlement, and not payable until then, the right to it clearly does not accrue until settlement.” (Emphasis in original).
“Since, under the factual allegations of the broker’s amended declaration in the present case, the broker was not entitled to a commission unless settlement occurred or unless the purchaser defaulted causing a forfeiture of the deposit, and since neither of these contingencies happened, the circuit court correctly sustained the demurrer.” (Emphasis added.)

In the case sub judice, as we have already held, the language of paragraph 6 (g) of the contract of sale manifests the clear intention of the parties that Davis was not to be paid a commission by the Buyer until and unless there was a “settlement”. Such language is a “special agreement to the contrary” within the meaning of the statute and the statute is therefore not applicable in determining the rights of the parties to this controversy.

Judgment affirmed. Appellant to pay costs.

Mason, J.,

dissenting:

Appellant, John C. Davis, operating as Columbia Real Estate, is a licensed real estate broker who was authorized by John S. Santini, et al., the sellers, to offer 66.59 acres of land in Howard County for sale. Davis procured a purchaser, appellee, Phase I, Limited and after negotiations, the buyer and sellers entered into a contract of sale for the land on July 5,1973. In pertinent part, the contract stated:

(g) The Parties recognize Columbia Real Estate as the Broker negotiating this sale. Buyer agrees to pay said Broker a brokerage fee for services rendered amounting to Twenty-Nine Percent (29%) of Ten Percent (10%) of the sale price at the time of settlement. Buyer agrees to give said Broker its promissory note for Seventy-One Percent (71%) of the Ten Percent (10%) brokerage fee without interest payable in Two equal annual installments measured from the date of settlement.

The contract provided for settlement on or before October 15, 1973. Phase I, however, was unable to obtain financing. Consequently, settlement never occurred.

After demands for payment of the broker’s commission were refused, Davis filed suit in the Circuit Court for Howard County. At the close of Davis’s case, Phase I made a motion to dismiss, which was granted. From this judgment, Davis filed an appeal.

At the time the contract was entered into, the statute governing real estate brokers’ commissions in Maryland was Code, Art. 21, § 14-105 (now substantially unchanged as Real Property, § 14-105), which stated:

Whenever, in the absence of special agreement to the contrary, a real estate broker employed to sell, buy, lease, or otherwise negotiate real or leasehold estate or mortgages, or loans thereon, procures in good faith a purchaser, seller, lessor or lessee, mortgagor or mortgagee, borrower, or lender, as the case may be, and the person so procured is accepted as such by the employer, and enters into a valid, binding and enforceable written contract of sale, purchase, lease, mortgage, loan or other contract, as the case may be, in terms acceptable to the employer, and such contract is accepted by the employer and signed by him, the broker shall be deemed to have earned the customary or agreed commission, as the case may be, whether or not the contract entered into be actually performed, unless the performance of such contract be prevented, hindered or delayed by any act of the broker, (emphasis added).

This statute was designed to settle the question when, in the absence of special agreement, a real estate broker is entitled to commission. Wyand v. Patterson Agency, 271 Md. 617, 319 A. 2d 308 (1974); Snider Bros., Inc. v. Heft, 271 Md. 409, 317 A. 2d 848 (1974). The Court of Appeals has interpreted “special agreement to the contrary” to be “an agreement specifying when in the sale process . . . the right to a commission accrues.” Wyand v. Patterson Agency, supra, 271 Md. at 624. If such a special agreement exists then the statute does not apply, and Maryland cases hold the broker cannot recover a commission if, as here, the contract was not consummated. See Wyand v. Patterson Agency, supra, 271 Md. at 625. By the same token, if there is no special agreement between the parties as to when the broker’s right to commissions comes into being, the statutory provisions control. Snider Bros., Inc. v. Heft, 271 Md. at 416.

The lower court in its memorandum opinion stated in part:

The view of this Court is dictated by the language in Paragraph 6 (g) of the contract, and, in its opinion, “settlement” constituted a condition precedent to the earning of the commission, and, therefore, there was a special agreement as to the payment of any commission.

In the proceedings below and before this court both in brief and argument, the issue was whether the provisions of Paragraph 6 (g) of the contract constituted a special agreement to the contrary under the statute. The majority does not find it necessary to address this issue because it construes the statute as only applying “where there is an employment relationship between the broker claiming the commission and the one from whom he is claiming it”. Thus, under this interpretation, the contract here would not come within the orbit of the statute. A careful reading of the statute, however, does not support this construction. The majority, by interpolation and implication, makes the statute express an intention clearly not evidenced by its language.

The statute itself plainly sets forth the conditions that must be met before a broker is entitled to his commission. The statute requires: (1) the procurement in good faith of a purchaser by the broker; (2) acceptance of the purchaser by the broker’s employer; (3) entrance by the purchaser into a valid, binding, and enforceable written contract in terms acceptable to the broker’s employer; (4) the employer’s acceptance of the contract and signature thereon. In the present case, all of these conditions have been met. The statute is clear that once these conditions have taken place, the broker has earned his commission, provided of course, there is no special agreement to the contrary, or wrongful interference with the performance of the contract by the broker. The statute does not require the existence of an employment relationship between the broker and the one from whom he is claiming his commission. In Cohen v. Duclos, 272 Md. 41, 321 A. 2d 145 (1974), the Court of Appeals was called upon to determine the right of a real estate broker to recover a commission from the prospective buyer of the property. Although in that case there was no evidence of an employment relationship between the broker and the purchaser, the Court of Appeals decided the case on the basis that the provisions contained in the contract of sale constituted a special agreement to the contrary under the statute.

The fact that no employment relationship existed between the broker and the purchaser in this case is of no controlling significance. The issue, which all the parties involved in the litigation assumed, is whether the contractual provisions in this case constituted a special agreement to the contrary under the statute. In my view, the contractual provisions, without more, did not make settlement a condition precedent to the payment of the broker’s fee. This conclusion is buttressed by dictum from Wyand v. Patterson Agency, supra. There a listing broker claimed a commission under a contract providing for a commission “if the property was sold”. The seller accepted a contract from the buyer procured by a non-listing broker, and the buyer later refused to perform. In the course of holding § 14-105 inapplicable on other grounds, the Court of Appeals stated:

... [W]e do not think that an agreement to pay a commission “if the property is sold” constitutes a “special agreement to the contrary” within the meaning of § 14-105. If it did, the statute would be rendered almost nugatory. In virtually all cases where a property owner ... employs a real estate broker, there is an agreement or understanding that the commission will be paid if the property is “sold” or if there is a “sale” or if a “purchaser” is procured. The question is: at what stage in the process is the property “sold” or is there a “sale” or is there a “purchaser”? It is this very question to which the statute and the previously discussed cases are addressed... 271 Md. at 624.

Although dictum, this is a strong indicator that language merely describing the time of payment is not sufficient to constitute a special agreement within the meaning of § 14-105, without other circumstances or contract language.

The case of Berman v. Hall, 275 Md. 434, 340 A. 2d 411 (1975), relied on by the majority is clearly inapposite. In that case there were two special agreements, (1) the commission was not due and payable until settlement; and (2) the commission was to be deducted from the proceeds of the sale. In the case, sub judice, the language of the contract was markedly different. There was no provision to the effect that the commission was due and payable at settlement or that the commission was to be paid from the proceeds of the sale.

In consideration of the evidence and the reasonable inferences therefrom, in a light most favorable to Davis, Phase I’s motion to dismiss was improvidently granted. I do not suggest however that the terms of the contract in this case are so clear as to preclude Phase I from establishing, after a full trial, that settlement was in fact a condition precedent to the payment of the broker’s commission. I would remand this case for further proceedings and admit parol evidence to explain the terms of Paragraph 6 (g) of the contract. Snider Bros., Inc. v. Heft, 271 Md. 409, 419, 317 A. 2d 848 (1974); Missler v. Anne Arundel County, 271 Md. 70, 80, 314 A. 2d 451 (1974). This is so despite the existence of an integration clause in Paragraph 6 (c). See Whitney v. Halibut, 235 Md. 517, 202 A. 2d 629 (1964); Rinaudo v. Bloom, 209 Md. 1, 120 A. 2d 184 (1956).

For the reasons set forth herein, I respectfully dissent.

      . The case was tried by the court without a jury. At the end of plaintiffs case defendant moved for a dismissal. Rule 535. The judge “reserved” his ruling. Defendant then offered evidence. At the close of all the evidence, the judge again announced “I’ll reserve my ruling on your motion” referring to defendant’s motion made at the end of plaintiffs case. In his “Memorandum and Order” filed in the case the judge “granted” the motion. Plaintiffs appeal is from “the Memorandum and Order”. Technically, therefore, the appeal is from the judge’s “reserved” ruling on the defendant’s motion to dismiss. We observe that when the defendant presented evidence after the judge “reserved” his ruling on the motion, the effect was a withdrawal of the motion. Therefore, there was no motion to rule upon at the end of the case. It is apparent, however, that the judge’s decision was based on all the evidence at the close of the entire case. There is no indication that his decision was based on a view of the evidence most favorable to the plaintiff, the test applied in deciding a defendant’s motion for dismissal in a nonjury trial upon completion of plaintiffs evidence. Testerman v. H. & R. Block, Inc., 22 Md. App. 320 (1974). In any event, the record reveals no dispute concerning any of the material facts admitted as evidence. The issues presented were issues of law as applied to undisputed facts. We therefore treat the appeal as from the judge’s decision on the sufficiency of the evidence at the close of the entire case rather than from a ruling on a motion to dismiss.

      . The Court reserved judgment on the motion to dismiss and permitted Phase I to offer some evidence. The evidence offered, however, was subsequently stricken from the record and the motion to dismiss was granted. I disagree with the majority’s treatment of the case as an appeal from the court’s decision on the sufficiency of the evidence at the close of the entire case, rather than from its ruling on a motion to dismiss. Phase I clearly was not permitted to present its entire case.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    KIRK JOSEPH STAMBAUGH v. STATE OF MARYLAND
    [No. 584,
    September Term, 1975.]

      Decided March 29, 1976.

    The cause was argued before Morton, Powers and Mason, JJ.

      Thomas J. Aversa, Jr., Assigned Public Defender, for appellant.

      James G. Klair, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and David A. Wilson, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Kirk Joseph Stambaugh killed his estranged wife’s paramour, Harold Morningstar, with a single blast from a shotgun. The homicide occurred between 1:00 A.M. and 2:00 A.M. on 3 February 1975 on the sidewalk in the 300 block of Shagbark Road, in Baltimore County, where Mrs. Stambaugh lived.

Stambaugh was indicted for murder and in a trial before Judge John N. Maguire and a jury in the Circuit Court for Baltimore County, was convicted of murder in the second degree. He was sentenced to serve a term of 30 years.

As appellant here Stambaugh contends that there were several errors in his trial which require that his conviction be reversed. We agree with one of his contentions, as does the State, and we shall reverse the judgment and remand the case for a new trial. It is not necessary that we consider the appellant’s other contentions.

The evidence was extensive, but reference to a few of the immediate facts is sufficient for our decision. Stambaugh and his wife had been separated for over a year. Morningstar had lived with Mrs. Stambaugh part of that time, but had moved to other quarters in the next block a few weeks earlier. A few minutes before the killing, Stambaugh parked his car at the curb near his wife’s home. He was observed by two or three neighbors, who were in no way otherwise involved. Morningstar came out of Mrs. Stambaugh’s house. Stambaugh, holding a shotgun, approached him. One of the neighbors called the police. The two men walked along the sidewalk, Morningstar ahead, Stambaugh a few feet behind. A shot was heard. Morningstar fell, wounded. He died a few hours later at a hospital.

Appellant testified in his own defense. He said that when he encountered Morningstar on the sidewalk he was afraid Morningstar would shoot him. He said that as they were walking he was two or three feet behind Morningstar. He then said:

“He made a move, and struck around at me and went to the left. As he went to the left, I fell back like and the gun was discharged and it hit him.”

He went over it again:

“At first I wanted his gun, like I say the gun was facing down, as like this hunting where you hold the gun on your arm cocked up. Then, I realized there was a round in the tube, and I tried to discharge it. I didn’t want to make the move. A pump shotgun makes a real loud noise. I tried to go slow. He walked back and kicked back. He come around with his foot like trying to kick me, two, two and a half feet in front of me, like to kick me. I went to the left and that is where he went, and the rifle was discharged.”

Whether to believe or to reject Stambaugh’s testimony tending to show that the shooting was accidental was solely for the jury, in the exercise of its duty to assess credibility. The evidence was sufficient to generate a jury question on the issue. Stambaugh was entitled to a constitutionally sound instruction to the jury to guide it in the resolution of that issue.

This case was tried in the circuit court in May 1975. More than a month later, on 9 June 1975, the Supreme Court of the United States decided Mullaney v. Wilbur, 421 U. S. 684, 44 L.Ed.2d 508, 95 S. Ct. 1881. In Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), this Court, in an exhaustive opinion by Judge Moylan, analyzed Mullaney v. Wilbur and discussed its application to the trial of criminal cases in Maryland. In Evans we held that Mullaney was retroactive. We held that the errors in jury instructions which transgressed the constitutional rights of the accused, as those rights were made clear in Mullaney, were plain errors material to the rights of the accused, which we would take cognizance of and correct, Maryland Rule 756 g, although no exception was taken to the instructions when they were given. Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972).

As a part of his instructions to the jury the trial judge said:

“The indictment charges the Defendant with Murder in the First Degree. However, under the Maryland law, even though the other counts are not specifically set forth, you may in your deliberations, consider Murder in the First Degree, Murder in the Second Degree, or Manslaughter, all of which are various degrees of felonious homicide. Now, by way of explanation, you are advised that homicide is presumed to be Murder in the Second Degree, and the burden is on the State to show that the killing was willful, deliberate and premeditated, if the crime is to be elevated to First Degree Murder. On the other hand, if you find that the Defendant is guilty of the homicide with which he is charged, the burden is upon the Defendant to establish such factors of excuse, justification or mitigation which would reduce the crime to Manslaughter.”

No doubt because all concerned considered the instruction to be a correct statement of Maryland law, no exception was taken.

After the jury had retired, it requested additional instructions. Judge Maguire told the jury, without objection:

“By way of explanation, you are advised that homieide is presumed to be Murder in the Second Degree, and the burden is on the State to show that the killing was willful, deliberate, and premeditated, if the crime is to be elevated to First Degree Murder. On the other hand, if you find that the Defendant is guilty of the homicide with which he is charged, the burden is upon the Defendant to establish such factors of excuse, justification, or mitigation which would reduce the crime to Manslaughter.”

It was error to instruct the jury “that homicide is presumed to be Murder in the Second Degree.” Mullaney v. Wilbur, supra, Evans v. State, supra, Garland v. State, 29 Md. App. 27, 349 A. 2d 374 (1975). That error alone would require us to reverse and remand this case for a new trial.

In Evans v. State, supra, and in Wright v. State, 29 Md. App. 57, 349 A. 2d 391 (1975), following Mullaney v. Wilbur, supra, we held that the issue of self-defense was fairly in the case, and that it was reversible error to instruct the jury that the accused had the burden of persuading them of the truth of the facts constituting that defense.

In the present ease, following the same authorities, we hold that the issue of accident was fairly in the case, and that it was reversible error to instruct the jury that the accused had the burden to establish the factor of excuse.

Judgment reversed, case remanded for anew trial.

      . We note that the same evidence excluded self defense as an issue. When one contends that harm he inflicted upon another was justifiable — that he had a legally sufficient reason — he necessarily acknowledges that it was intentional. When he contends that it was excusable — that it was an accident — he excludes the possibility that it was done for a reason.

        . We are aware that in a retrial of this case the evidence might well require consideration of an instruction on a question of law not raised or decided below and not raised or argued on appeal. See Mills v. State, 13 Md. App. 196, 282 A. 2d 147 (1971), and other cases there cited, stating that involuntary manslaughter at common law is defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty.


author: Gilbert, J.,

text:
    MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION et al. v. WASHINGTON NATIONAL ARENA
    [No. 683,
    September Term, 1975.]

      Decided March 30, 1976.

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

      David S. Eliden, Associate County Attorney and Ellis J. Koch, Deputy County Attorney, with whom was James C. Chapin, County Attorney on the brief for appellant, Prince George’s County, Maryland. Submitted on brief by Sanford E„ Woll for appellant Maryland-National Capital Park and Planning Commission. Submitted on brief by Francis B. Burch, Attorney General and Ward B. Coe, III, Assistant Attorney General for appellant State of Maryland.

      Robert A. Manzi, with whom were Peter F. O’Malley and Shipley, O’Malley & Miles on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Maryland-National Capital Park and Planning Commission (MNCPPC), Prince George’s County, Maryland, (County) and the State of Maryland (State) have appealed from an order denying them a declaratory judgment entered in the Circuit Court for Prince George’s County. The circuit court denied the MNCPPC petition for an injunction and, thereby, permitted the Washington National Arena (WNA), a limited partnership, to pursue a tax assessment appeal.

MNCPPC and the County seek a reversal of the order. The State of Maryland, invokes a two-pronged attack. First, the State asserts that it was error for the trial court to deny the State the right to intervene in the proceeding and, second, that the trial court was incorrect in its decision on the merits. The State suggested on oral argument that we decide both issues in their favor. Such an arrangement would place the State in the position of having the merits of the appeal adjudicated without the necessity of ever having had their case heard on the merits in the trial court. Were we to follow the State’s suggestion, we would, in effect, have to close our eyes to Md. Rule 1085.

That the State has a right to appeal from a denial of a motion to intervene is no longer open to doubt. Citizens Coordinating Comm, on Friendship Heights, Inc. v. TKU Associates, 276 Md. 705, A. 2d (1976); See also Nat’l 4-H Club Found, of America v. Thorpe, 22 Md. App. 1, 9, 321 A. 2d 321, 326 (1974); Md. Rule 208. If the State was a necessary party to the declaratory judgment action between MNCPPC and WNA, but was wrongfully denied intervention in the case, the decision on the merits of the matter before us is rendered nugatory, and we shall be required to reverse and remand for further proceedings.

The threshold question then is, was the State erroneously denied the right to intervene In the declaratory judgment action?

In the case subjudice, the “Petition for Declaratory Judgment and Injunction” was brought by MNCPPC to secure a ruling on a contractual obligation of WNA arising from a lease. The answer of WNA manifests that, in the view of the respondent, a clause of the lease, which is the actual “bone of contention,” is violative of WNA’s “. . . constitutional rights of equal protection and due process of law.”

The lease clause sought to be enforced by MNCPPC, and vigorously opposed by WNA, provides:

“Lessee [WNA by assignment] further agrees that it will not contest or challenge any determination by the State Assessor that the real estate improvements are subject to real estate taxes.”

When the State Assessor made his determination, WNA appealed to the Property Tax Assessment Appeal Board for Prince George’s County. MNCPPC alleged in its petition for declaratory judgment that WNA’s appeal to the Appeal Board constituted a breaeh of the above quoted clause of the lease.

Because the government of Prince George’s County believed, among other reasons, that it had “... a pecuniary interest in the . . . matter and an adverse decision . . . would cause substantial loss of tax revenue to . . . [the] County,” it petitioned to intervene. The State of Maryland also petitioned to intervene alleging “That the State of Maryland has a substantial interest in the subject matter of this suit by virtue of the effect the Court’s decision may have on the State’s right to certain real estate taxes.” Both petitions were heard immediately prior to the argument of the case on its merits. The County’s petition to intervene was granted. The State’s petition was denied.

Md. Ann. Code, Courts and Judicial Proceedings Article § 3-405 (a) (1) mandates that, “If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.”

The Court of Appeals, in Williams v. Moore, 215 Md. 181, 137 A. 2d 193 (1957), said the above quoted portion of what is now Courts Art. § 3-405 (a) (1) had been interpreted many times, and that, “It may be stated as a general rule that ordinarily, in an action for a declaratory judgment, all persons interested in the declaration are necessary parties.” 215 Md. at 185.

Inasmuch as real estate taxes, payable not only to a political subdivision, but also to the State were involved in the instant litigation, it goes without saying that the State had a financial interest in the case.

Md. Rule 208, governs intervention. It provides in pertinent part:

“a. Of Right.
Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action . . . .”

Judge Levine, writing for the Court of Appeals in Citizens Coordinating Comm, on Friendship Heights, Inc. v. TKU Associates, supra, discussed Rule 208 and the applicable law with respect to the right to intervene in an action pending in a trial court. The Citizens opinion was grounded on federal appellate decisions, largely because there is a dearth of Maryland case law on the subject. 4Citizens quotes from C. Wright and A. Miller, Federal Practice and Procedure, Civil § 1909 (1972), that the “ ‘. .. most important factor in determining adequacy of representation is how the interest of the absentee compares with the interests of the present parties.’ ” 276 Md. at 713. Judge Levine, in Citizens, went on to state, “Where the applicant’s interest is similar to, but not identical with, that of an existing party, he ordinarily should be allowed to intervene ‘unless it is clear that the [existing] party will provide adequate representation for the absentee.’ [Wright & Miller § 1909].” 276 Md. at 713. The Court said that, “[t]he burden of showing that existing representation may be inadequate is a minimal one.” 276 Md. at 714. The question then arises as to whether the State met the burden of showing that the representation by the MNCPPC and the County was inadequate as to the State.

On the face of the Attorney General’s petition, brought on behalf of the State, it is plain that the State’s interest in the real estate taxes would be affected by any decision of the trial court. Hence, unless the representation of the State’s interest by the County or MNCPPC was adequate, the State should have been allowed to intervene. Why the judge declined to allow the State to intervene is not revealed by the record. We are presented with the bare result, but not the reason for the result.

Based upon the County’s interest in real estate taxes, inter alia, it might be argued that the County’s presence in the case adequately protected the State’s interest so that there was no necessity for the State’s intervention, but no such argument has been made.

It is not necessary that there be a positive showing of inadequacy of representation in order to intervene. It is sufficient that the representation “may be inadequate.” Citizens Coordinating Comm, on Friendship Heights, Inc. v. TKU Associates, supra; Kozak v. Wells, 278 F. 2d 104, 110 (8th Cir. 1960); Ford Motor Co. v. Bisanz Bros., 249 F. 2d 22, 27-28 (8th Cir. 1957). Moreover, a “serious possibility” that the applicant’s interest may not be protected adequately satifies the rule. Citizens Coordinating Comm, on Friendship Heights, Inc. v. TKU Associates, supra; Nuesse v. Camp, 385 F. 2d 694, 704 (D.C. Cir. 1967).

Paraphrasing Judge Levine in Citizens, the interest of the existing parties is similar but- not identical. The County government represents the people who reside within the territorial confines of Prince George’s County. It is primarily interested in their welfare. The Attorney General, on the other hand, represents the people of the entire State, not just one political subdivision. The interest of two governments, State and County, may be the same but not necessarily so. The State is interested in the welfare of all its citizens not just those of Prince George’s County. Inasmuch as the interest of the County may not be the same as that of the rest of the State, we cannot say that the interests are identical and that the County adequately represented the State’s interests.

MNCPPC’s interest is likewise not identical with that of the State. MNCPPC is a hybrid administrative agency whose jurisdiction encompasses parts of two counties. Md. Ann. Code art. 66D. It is not a State agency although it may act as the representative of the State for the limited purposes set out in Md. Ann. Code art. 66D, § 4-101, not here applicable. The Commission is a bi-county agency charged with the duty of carrying out general plans for the physical development of the metropolitan district. While its interests are not necessarily in conflict with the State’s, the interests are confined to the authority granted by the statute under which the Commission was created.

Moreover, it is possible that the State may believe and argue to the trial court that the agreement entered into by MNCPPC and approved by the County was ultra vires so that the State’s position would be contrary to both the County’s and MNCPPC’s.

■As we have indicated, whatever reasons led the trial judge to deny the State’s right to intervene are not disclosed in the record. We have before us only the judge’s conclusion, spoken at the hearing, with respect to the Attorney General’s motion: “It is denied .... We will make it more formal. The motion of the Attorney General to intervene is denied.”

We think the State should have been allowed to intervene as a matter of right. Because it was not, we are compelled, by Citizens and Williams, to reverse.

Order denying the motion of the State of Maryland to intervene is reversed.

Order reversed.

Case remanded for a new hearing.

Costs to be paid by appellee.

      . Nat’l 4-H Club suggests that the granting of a motion to intervene is not immediately appealable.

      . At the time Williams v. Moore was decided, the same statutory language appeared as Md. Ann. Code art. 31A, § 11.

      . But see Nat’l 4-H Club Pound, of America v. Thorpe, supra.

      . The County also alleged “[t]hat the validity of an executive agreement and/or ordinance ... [might] be affected by this action” and that the “rights and assets of... [the]... County” might be affected.


text:
    SCOTT & WIMBROW, INC. v. WALTER S. CALWELL
    [No. 709,
    September Term, 1975.]

      Decided March 30, 1976.

    The cause was argued before Moylan, Gilbert and Lowe, JJ.

      Peter Ayers Wimbrow, III for appellant.

      Maurice F. Mackey, Jr., with whom were Callahan, Calwell & Laudeman on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The appellee, Walter S. Calwell, is a member of the Maryland Bar, and the attorney named in a mortgage from The Great Maryland Farming Company, Inc., et al., to Baltimore Federal Savings and Loan Association. As such attorney, Mr. Calwell instituted foreclosure proceedings against Great Farming and others in the Circuit Court for Worcester County, alleging an original mortgage of $350,000, with a balance due, including interest, of $319,770.88.

Following the publication of an order nisi in The Eastern Shore Times warning that the foreclosure sale in the amount of $100,000 would be ratified unless “ ... cause to the contrary ...” was shown, appellant Scott & Wimbrow, Inc., filed exceptions to the sale.

Initially, the exceptions of appellant contended three things. First, appellant said it was a construction company with “. . . a recorded mechanic’s . . .” lien. Second, that the sales price of $100,000 was “ . . . grossly inadequate to the extent of being unfair and unreasonable.” Third, that the required “ ... deposit was indeterminable under the ‘terms of sale’.. ..” The appellant, in a series of patchwork amendments, four in number, finally raised the total number of exceptions to eight.

The exceptions asseverated that: (1) appellant was a construction company with a recorded mechanic’s lien against the property being foreclosed; (2) the foreclosure sales price was “... inadequate, ... unfair and unreasonable ...” in relation to “ . .. fair market value ... ”; (3) the amount of the deposit required at the time of sale was “indeterminable”; (4) although monies were to be expended by the mortgagee for the mortgagor on the improvement of the real estate, no such funds were ever disbursed to appellant; (5) ratification of the foreclosure was tantamount to taking appellant’s property without just compensation, and, thus, in violation of the Constitution of the United States; (6) mortgagee was being unjustly enriched; (7) appellant, as a lienor, should have been joined in the foreclosure proceeding; (8) ratification of the foreclosure constituted the taking of appellant’s “... property without due process of law.”

Appellant, at the request of Great Maryland, hauled 16,608 cubic yards of fill dirt to a property that subsequently became subject to the mortgage of Baltimore Federal. The “fill” was transported to the property during the period July 31, 1972 to September 18, 1972. Two days thereafter, C. Heurich, Jr., and Helen M. Heurich, his wife, conveyed the property to Great Maryland, who simultaneously executed a mortgage thereon to Baltimore Federal. On oral argument, we were advised that appellant, on December 8, 1972, “ . .. filed a Notice of Intention to Claim Mechanic’s Lien....” The notice, according to appellant’s brief, was filed in “ ... the Mechanic’s Lien Records of Worcester County. . . . This lien was against the property in question and was for work performed and material supplied prior to the recordation of the mortgage.”

The exceptions were heard before Judge Daniel T. Prettyman. The judge observed in his “Opinion and Order of Court” that he would take “ . . . judicial notice of the fact that a ‘Petition’ seeking to enforce the Mechanic’s Lien was filed by Scott & Wimbrow, Inc., on December 4, 1974, and that the validity of that Mechanic’s Lien ...” was then “ ... in issue....” Judge Prettyman also noted that appellant “ . . . did not produce any evidence of its ‘judgment lien’ ” and that while the court would “ ... take judicial notice of its own records ...” it did not find therein a judgment “ . . . in favor of Scott & Wimbrow, Inc. against The Great Maryland Farming Company, Inc....”

We were informed, on oral argument, that such a judgment did exist and had been forwarded to this Court. Our Argus-eyed review of the record fails to reveal the existence of such a judgment, however.

While the matter was pending before Judge Prettyman, but after hearing, both the then counsel wrote to the judge. Neither, apparently, sent opposing counsel a copy of the communication directed to the court. Judge Prettyman, however, caused a copy of each counsel’s communication to be forwarded to the other. In the letter from appellant’s counsel, it is stated, “First, Scott & Wimbrow, Inc. is exerting a claim prior to that of Baltimore Federal through its recorded mechanic’s lien. Second, Scott & Wimbrow, Inc. is exerting a claim subsequent to that of Baltimore Federal through its recorded judgment.” (Emphasis supplied).

We shall discuss each of the appellant’s two contentions as we believe such a discussion to be dispositive of this appeal.

Appellant as a Prior Claim Holder

If the record supported appellant’s allegation with respect to such a “prior claim,” it would have no standing to intervene in the foreclosure because it could, in no manner, be affected by the outcome of the foreclosure sale. Irrespective of whether the price bid at the sale was so inadequate as to be grossly shocking, or there was improper advertising of the sale, or the mortgagee improperly dissuaded prospective purchasers from bidding, a prior lien would be placed in no jeopardy because it could not be extinguished, much less its effectiveness diminished.

Generally speaking, the holder of a prior lien has no standing to file exceptions in a mortgage sale conducted by a subsequent lienor because such a sale is subject to prior recorded liens. Plaza Corp. v. Alban Tractor Co., 219 Md. 570, 576-77, 151 A. 2d 170, 173 (1959).

The Court of Appeals, in Baltimore Fed. Sav. & Loan Ass’n v. Eareckson, 221 Md. 527, 158 A. 2d 121 (1960), considered a case wherein Eareckson, the assignee of a second mortgage, instituted foreclosure proceedings against the mortgagor. The property was sold for $9,030, with Eareckson as the purchaser. Baltimore Federal, in addition to its first mortgage, had made an unsecured loan to the mortgagor sometime after the second mortgage was recorded. The loan was reduced to judgment. As a judgment creditor, Baltimore Federal filed a petition in the second mortgage foreclosure for an allowance of its claim of $794.90 out of the proceeds of the foreclosure sale after the payment of the second mortgage. There was due Baltimore Federal $6,711.15 on the first mortgage which, when deducted from the foreclosure sales price, together with a deduction for costs, left a remainder of $1,878.45. That sum was paid over to Eareckson on the second mortgage so that there was nothing left to pay the judgment creditor. Baltimore Federal excepted to the auditor’s account on the basis that its judgment claim should have been paid. It asserted that the second mortgagee should have been paid first, then the judgment creditor and the balance of $4,700 paid to the mortgagors, leaving the property subject to the first mortgage. The Court, speaking through Judge Henderson (later Chief Judge), quoted, 221 Md. at 529-30, from its prior decision, Tobin v. Rogers, 121 Md. 249, 252, 88 A. 133, 133-34 (1913):

“ . . . The first mortgagee not having been made a party, any sale under the second mortgage must necessarily have been subject to the operation of the first mortgage, unless the first mortgagee assented to a sale free and clear of his mortgage or voluntarily released his mortgage, or intervened in this proceeding, subjecting himself and his mortgage to the jurisdiction of the Court.”

See Tolzman v. Gwynn, 267 Md. 96, 296 A. 2d 594 (1972). The Court agreed with the judgment creditor, noting that not only was the first mortgagee not a party and that it did not file a claim, but that it was not even shown that the first mortgage was in default. 221 Md. at 530.

We observe no difference in standing between a first mortgagee and a prior judgment lien holder. Since a first mortgagee, may, but need not, be a party to a foreclosure proceeding, it follows that a prior judgment lienor may, but need not, be a' party to a foreclosure sale made by a subsequent mortgagee.

Of course, overriding what we have thus far opined, is that assuming appellant has a prior recorded mechanic’s lien, such lien, under Barry Properties, Inc. v. Fick Bros. Roofing Co., 277 Md. 15, 353 A. 2d 222 (1976), would be a nullity ab initio. Judge Digges, writing for the Court, in Barry Properties, said that “ ... there can be no existing lien on property until and unless the claimant prevails either in a suit to enforce the claimed lien or in some other appropriate proceeding providing notice and a hearing (i.e., a declaratory judgment action).” (Footnote omitted). 277 Md. at 37.

It would, therefore, appear that under Barry Properties, appellant not having prevailed “in a suit to enforce the claimed lien or in some other appropriate proceeding,” the alleged mechanic’s lien is of no force and effect.

Appellant as a Subsequent Claim Holder

Appellant also argues that it is a subsequent claim holder, and, as such, was entitled to notice of the foreclosure sale. We infer that appellant means “personal notice” as distinguished from the “public notice” required by Md. Rule W74 a 2 (b). The law is clearly to the contrary. Personal notice of a mortgage foreclosure is not necessary. Butler v. Daum, 245 Md. 447, 226 A. 2d 261 (1967). See also Blanch v. Collison, 174 Md. 427, 199 A. 466 (1938). The mortgagee must endeavor to advise the mortgagor of the “ . . . time, place and terms of the sale.” Md. Rule W74 a 2 (c). No similar provision is contained in the Rule with respect to prior or subsequent lien holders. In any event, the issue is academic in that appellant did receive notice, apparently by way of publication of the order nisi, and it did file exceptions to the foreclosure.

Ordinarily,, a general creditor has no standing to interpose objections to the ratification of a sale under a mortgage. Hannan v. Lyddane, 164 Md. 357, 361, 165 A. 308, 309 (1933).

In the case sub judice, since the record does not reflect that appellant is a subsequent judgment creditor, he is a general creditor and, as such, has no standing to file exceptions to the foreclosure sale. This being the status of the appellant in this case, it is unnecessary for us to discuss the merits of the exceptions filed by appellant. If it be of any solace to appellant, we have examined the exceptions relied upon by it and discover no merit therein.

Appellee raised another question by including in its brief a motion to dismiss on the ground that the property has been transferred to a bona fide purchaser after the ratification of the sale since no supersedeas bond was filed to prevent transfer pending appeal. When, as here, a mortgagee purchases at his own sale and exceptions are taken to that sale, an appeal from the overruling of such exceptions does not require the posting of a supersedeas bond. If, however, the property is conveyed to a third person while the appeal is pending, the failure to post the supersedeas bond might well render the appeal moot. In the instant case, there was, insofar as has been revealed to us, no intervening sale of the property and the appellee is still the holder of record. We are unable to fathom how appellee has been damaged by the appellant’s failure to post the supersedeas bond, nor why, in this case, failure to post such bond moots the issue and thus mandates a dismissal of the appeal. We reject, summarily, the motion to dismiss.

Motion to dismiss denied. Judgment affirmed.

Costs to be paid by appellant.

      . In addition to The Great Maryland Farming Company, Inc., its president, James E. Collins, Jr., and his wife, Pamela K. Collins, individually, executed the mortgage as co-mortgagors.

      . What authority, if any, Great Maryland had to order appellant to haul fill to the property of the Heurichs is not disclosed by the record nor was its standing to do so raised in the trial court or here. We shall consider, as the trial court seemingly did, that Great Maryland possessed the necessary authority.

      . The appellant has printed, as part of its brief, what purports to be “Docket Entries” in a case entitled “Scott & Wimbrow, Inc., A Maryland Corporation v. The Great Maryland Farming Co., A Body Corporation [sic].” The “docket entries” show that a judgment by confession was entered in favor of appellant against Great Maryland for $42,500, plus counsel fees and interest from the date of September 9,1974. These “docket entries” are not part of the record and, apparently, were not part of the record before Judge Prettyman. We shall not consider them.

      . By Md. Rule 1230, the Court of Appeals adopted the Code of Professional Responsibility of the American Bar Association. Sub-Canon EC 7-35, of Canon 7, provides that “ a lawyer should not communicate with a tribunal by writing unless a copy thereof is promptly delivered to opposing counsel....”

      . We have previously stated that no evidence was produced at the hearing in the circuit court of a judgment lien, nor was the trial judge able to find such a lien. Similarly, our review of the record discloses no such judgment lien.


author: Lowe, J.,

text:
    HARRY C. COLWELL v. HOWARD COUNTY, MARYLAND et al.
    [No. 712,
    September Term, 1975.]

      Decided March 30, 1976.

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

      Bernard F. Goldberg, with whom was Michael A. Neal on the brief, for appellant.

      R. Russell Sadler, Deputy County Solicitor, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Pons Asinorum

On April 28, 1970 an amendment was adopted adding Sections 22A.01-22A.05 as part of Howard County’s “Euclidean” Zoning Regulations. It provided that whenever the zoning map of Howard County was amended, “such amendment shall be subject to the following conditions”:

.01 A Site Development Plan must be submitted to the Howard County Office of Planning and Zoning within 2 years, or the property shall revert to its prior classification.
.02 The plan shall show location of specified facilities and must be approved by the Howard County Office of Planning and Zoning before any construction is started.
.03 Building permits must be applied for within one year of site plan approval for a building or buildings comprising 25% of the building floor area of the site plan, or the zoning of the property shall be void and shall revert to the prior classification.
.04 Substantial construction under the building permits must be underway within 3 years or the property shall revert to its original classification.
.05 Although the Zoning Board may grant one one-year extension if recommended by the Planning Board, if a property should revert, no further substantially similar petition may be considered for 1 year.

In short, Howard County now warns its successful zoning applicants to “use it or lose it.”

Facts

Appellant, Harry C. Colwell, owns certain lands in Howard County for which he and/or his predecessor in interest sought and obtained a zoning classification change from R-20 (residential) to R-A-l (apartments). Although the Zoning Board denied that application, appellant prevailed on appeal before the Circuit Court on December 22,1972.

Two years later, on November 7, 1974, appellant was notified by the Office of Planning and Zoning that unless a Site Development Plan was filed pursuant to the aforesaid regulations, his zoning classification would revert to its former status. In response to that notice, Colwell filed a Bill of Complaint for Declaratory Judgment in the Circuit Court for Howard County, questioning the validity of the reverter provisions of the above quoted sections of the Zoning Regulations of Howard County.

His primary contention below and on appeal is that the provision under which his land reverted to its previous zoning classification is nothing more than an enactment of conditional zoning which he argues is repugnant to both law and reason. He cites as authority for this proposition Hausmann & Johnson, Inc. v. Berea Bd. of Bldg. Code App., 320 N.E.2d 685 (Ohio) and Scrutton v. County of Sacramento, 79 Cal. Rptr. 872. Appellant also points to dicta in Templeton v. County Council, 21 Md. App. 636, which we have found to be totally inapplicable to the present appeal.

With the exception of the applicability of the term “conditional,” we fail to see how any of the authorities cited relate to the issue before us. All of the cases appellant cites as authority involved contractual agreements made between individuals and the zoning authority. In Scrutton v. County of Sacramento, supra, the planning commission executed a contract under which the applicant for rezoning agreed to improve a 27 foot strip of her land at an expense of approximately $13,000 in exchange for the rezoning of that land from agricultural to multiple family residential. Hausmann & Johnson, Inc. v. Berea Bd. of Bldg. Code App., supra, concerned an ordinance which required persons applying for rezoning to execute reversionary contracts with the city agreeing to use the property for the purpose requested within twelve months. The public policy behind invalidating these conditional zoning agreements was recognized by the Maryland Court of Appeals in Baylis v. City of Baltimore, 219 Md. 164, 170, where it was stated:

“... that rezoning based on offers or agreements with the owners disrupts the basic plan, and thus is subversive of the public policy reflected in the overall legislation, that the resulting ‘contract’ is nugatory because a municipality is not able to make agreements which inhibit its police powers, and that restrictions in a particular zone should not be left to extrinsic evidence.”

See also Mont. Co. v. Nat’l Capital Realty, 267 Md. 364; Wakefield v. Kraft, 202 Md. 136 and Hausmann & Johnson, Inc., supra, at 690.

The primary objection to conditional zoning then, is that it permits a use of particular property in a zoning district subject to restrictions other than those applicable to all land similarly classified. Mayor and City Council of Baltimore v. Crane, 277 Md. 198; Anderson, American Law of Zoning, § 8.20. The evils inherent in conditional zoning agreements are clearly not inherent in a regulation that applies equally to all rezoned properties. We are not persuaded by appellant’s attempt to analogize these distinct types of conditions on rezoning. The “use it or lose it” concept is an effective tool for controlling premature land development. Additionally, it serves to inhibit manipulative zoning by avaricious land speculators who are often unconcerned about the effect of development on a community. In short, it has a rational relationship to the purposes of zoning regulations and is a reasonable exercise of police powers. See Md. Code, Art. 66B, § 4.03.

Uniformity v. Retroactivity

Because the ordinance is expressly limited to “any amendment to the Zoning Map . . . made after the effective date of this amendment,” appellant further contends that the requirement that zoning be uniform is violated since properties zoned after the enactment of the regulation are subject to reversion to their former classification and properties zoned before the enactment of the regulation are not.

Appellant’s argument highlights a traditional legislative dilemma in fashioning laws which will successfully navigate the constitutional seas. If legislation applies both past and present, it is caught in the whirlpool of retroactivity. If it avoids that whirlpool by applying the law prospectively only, the monster demanding uniformity lies in wait.

We find no fault with the legislative decision of the County Council to apply the regulation prospectively only. Although neither Maryland nor federal law specifically proscribes retroactivity for civil statutes, Braverman v. Bar Assn. of Balto., 209 Md. 328, 348, cert. den., 352 U. S. 830, retroactive statutes are not favored even when they do not conflict with vested or other rights guaranteed by the Constitution. Goldston v. Karukas, 180 Md. 232. Therefore, and in light of the strong presumption in favor of the validity of such exercises of police power, Templeton v. County Council, supra, we will uphold the prospective operation of these regulations.

The Use It or Lose It Rationale

Notwithstanding that appellant’s immediate concern rests with the reversion pursuant to § 22A.01-.02 for failure to submit a site plan within two years of the zoning change, we will also consider the validity of the additional requirements that application be made for a building permit within one year of approval of a site plan, § 22A.03, and that substantial construction must be commenced within three years of the permit’s issuance. Although there are few cases dealing with the “use it or lose it” concept of zoning, its validity has been acknowledged and approved in scattered cases, usually when reversion has taken place as a result of the lapse of a specified time period following the issuance of a permit.

In Sherwood Lanes, Inc. v. City of San Angelo, 511 S.W.2d 597, the Court of Civil Appeals of Texas held that it was within the scope of legislative power of a city commission to prescribe that special permits authorized by ordinance would be inoperative if not accepted and used within one year from the enactment of the ordinance.

In Upton v. Gray, 74 Cal. Rptr. 783, the California Court of Appeal was asked to interpret a zoning ordinance which provided that any building permit would expire within one year of issuance unless the use for which it was granted was established within that period of time. Although they never dealt directly with the validity of such a requirement, the court recognized the rationale behind it stating:

“it is apparent, and both parties seem to agree, that the purpose of section 34.9 of the zoning ordinance is to prevent one from reserving land for future purposes when that person has no good faith intent to presently commence upon the proposed use.” Upton, supra, at 787.

The Supreme Court of New Jersey in Houdaille Constr. Mats., Inc. v. Bd. of Adjustment, 223 A. 2d 210, held inter alia that the condition that a special use permit be accepted within 60 days was invalid and arbitrary, “in the absence of a general provision in the ordinance requiring all building or use permittees to signify acceptance within that time period.” However, the court also held that “[t]he municipality can by a reasonable ordinance provision limit the life of a building or use permit duly granted.” See also Kurowski v. Board of Adjustment of City of Bayonne, 78 A. 2d 429 (N.J.).

When Zoning Vests as a Right

Although no Maryland case to our knowledge has treated the question raised here directly, it is clear from the reasoning of the Court of Appeals on related issues that appellant’s contention that he was denied due process is without merit. For appellant to have been denied due process, he must have had a vested right to the zoning classification which he lost by operation of law and passage of time. The Court of Appeals has held that the obtention of a building permit in furtherance of a then permitted use, does not create a vested right constitutionally insulated against a change in the zoning ordinance forbidding that particular use. Ross v. Montgomery County, 252 Md. 497, 504.

Rockville Fuel v. Gaithersburg, 266 Md. 117, reiterates the generally accepted rule that there is no vested right in zoning until construction is substantially begun, or as colloquially phrased, “the shovel is in the ground.” The Court quoted from 2 Rathkopf, The Law of Zoning and Planning, 3d ed., Ch. 57, § 3, at 37-6 to 57-7:

“ ‘ * * * The majority rule, which can be synthesized from the multitudinous decisions in this area, may be stated as follows: A landowner will be held to have acquired a vested right to continue the construction of a building or structure and to initiate and continue a use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations. * * *’ ” Id. at 125.

The Court also cited with approval and followed their prior decisions in Anne Arundel County v. Snyder, 186 Md. 342 and Mayor & C. C. of Balto. v. Shapiro, 187 Md. 623.

In Shapiro, the landowner purchased a tract of land for the express purpose of engaging in a use permitted under the existing provisions of the zoning law, and had actually applied for and received a permit to engage in that permitted use some five months prior to the adoption of an amendment to the zoning ordinance prohibiting that use. The Shapiro Court said:

“The mere issuance of a permit, where the permittee has not commenced the work or incurred substantial expense on the faith of it, does not create a vested right, or estop the municipal authorities from revoking it.” 187 Md. at 634.

This rule has been continually and frequently adhered to, see Malmar Associates v. Board, 260 Md. 292; Richmond Corp. v. Bd. of Co. Comm’rs, 254 Md. 244. Surely, if a landowner’s right to a particular zoning classification is not yet vested, it does no violence to his constitutional rights to require through a generally applied, properly enacted law, that a zoning change be utilized within a reasonable time period.

The Moratorium

Appellant would have us believe that his sole reason for non-compliance with the two-year limitation is that:

“A sewer moratorium has been declared which prevents the development of the property as rezoned, since public utilities are a requirement of the Zoning Regulations, however, water and sewer are available, subject to the moratorium.”

While this fact gives appellant a more sympathetic position from which to appeal, his legal posture is no different than if he had simply elected not to comply for reasons left unstated. Appellant does not attack the sewer moratorium directly. Rather, he contends that by virtue of the moratorium, the County has rendered it impossible for him to comply with the site plan requirement. Upon analysis, this argument militates more favorably for the County than for appellant.

Assuming, as we must, that the sewer moratorium was imposed for the health, safety and welfare of the people of Howard County, it follows that the reverter clause in the zoning ordinance also serves that purpose since it operates as a mechanism by which the zoning authorities can reconsider the rezoning of land after the moratorium is lifted. For example, the sewerage difficulties which led to the imposition of the moratorium may very well compel restricting the density of development in the area in which appellant’s land is located. Should appellant again seek apartment zoning, as he may do one year after the reversion, the Board would then have an opportunity to consider his application with that in mind. This very pointedly demonstrates how the provisions in question serve the desired purposes of zoning regulations as legislatively espoused in Md. Code, Art. 66B, § 4.03:

“Such regulations shall be made in accordance with the plan and designed to control congestion in the streets; to secure the public safety; to promote health, and the general welfare; to provide adequate light and air; to promote the conservation of natural resources; to prevent environmental pollution, to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, recreation, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its suitability for particular uses, and with a view to conserving the value of buildings and encouraging the orderly development and the most appropriate use of land throughout the jurisdiction.”

Judgment affirmed.

Costs to be paid by appellant.

      . It is somehow appropriate that the rigidity of an Euclidean zone can only be assailed by the narrow and difficult procedural path of the change-mistake rule. Ironically, the fifth proposition of Book I of Euclid’s Elements has reference to an equally difficult procedural path which he terms the pons asinorum — the bridge of asses. It is too difficult for asses, or for stupid boys, to get over.

      . In Board v. Turf Valley, 247 Md. 556, the Court of Appeals recognized that Howard County’s zoning law created Euclidean zoning rather than a “floating zone.” The significance of that distinction in Turf Valley was that under Euclidean zoning the “mistake-change in conditions” rule applies to zoning change applications, whereas under the floating zone approach there is greater discretion in the administrator of the governing body to grant zoning changes.
      “The analogy of special exception uses has been applied to zoning actions dealing with the placement of a floating zone. Bujno v. Montgomery Co. Council, 243 Md. 110, 220 A. 2d 126 (1966); Chatham, [243 Md. 138] supra; Beall, [240 Md. 77] supra, and authorities therein cited. But this analogy is not applicable to situations like the one before us, where the governing application is only to change one existing use, established under a comprehensive zoning plan, to another existing, established use, where the result would be a spot rezoning and where no original mistake or subsequent change has been established. To apply the floating zone approach to such situations would be in effect, either to open the floodgates of uncontrolled administrative discretion or to authorize the courts to zone and to rezone.” Board v. Turf Valley, 247 Md. at 562.

      . Although appellant does not use the language of the due process clause of the Constitution, Section 1 of the 14th Amendment, we assume that that is the constitutional ground he is asserting.

      . See Steuart Petroleum Co. v. Board, 276 Md. 435, 442-444, for a review of cases dealing with “vested rights.”


text:
    HOUSING EQUITY CORPORATION v. WILLIAM T. JOYCE ET AL.
    [No. 722,
    September Term, 1975.]

      Decided March 30, 1976.

      The cause was argued before Moylan, Gilbert and Lowe, JJ.

      Charles Norman Shaffer, with whom were Joseph D. Tydings and Robert A. Klein and Shaffer, McKeever & Fitzpatrick on the brief, for appellant.

      Edward J. McGarth, with whom were Paul R. Connolly, Paul Martin Wolff arid Williams, Connolly & Calif ano on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

William T. Joyce, Margaret Joyce, Stephen Jones, Ann Jones and Alma Burns brought suit against Housing Equity Corp., appellant, on a series of notes, in the Circuit Court for Montgomery County. The case was removed to Caroline County, and further removed to Kent County where it was tried before a jury, presided over by Judge George B. Rasin, Jr. The jury, on October 16, 1973, handed down a verdict in favor of William T. Joyce and Margaret Joyce in the amount of $361,786.15. An identical verdict was rendered for Stephen N. Jones and Ann Jones. Alma M. Burns was also awarded a verdict for a like amount. Judgments absolute were entered on the verdicts on November 1,1972.

The judgments not having been paid, all the judgment creditors, except Alma M. Burns, filed, in the Circuit Court for Montgomery County, a “Petition for Supplementary Proceedings and Appointment of Receiver.” The petition alleged that the judgments were more than sixty days old and that no payment had been made thereon. The petition further asserted:

“Defendant, Housing Equity Corporation is insolvent, in that its debts far exceed its current assets, since its officers, directors and shareholders have disbursed all assets to themselves or to entities which are wholly-owned or wholly-controlled by them for their personal gain.”

The petition pointed out that it was improbable that Housing Equity Corp., owned or controlled by the recipients of the disbursed assets, would proceed to recover those assets. The rights of appellees to undertake supplementary proceedings was uncontested, but the appointment of a receiver was vigorously opposed by appellant.

The petition was heard before Judge Joseph M. Mathias in open court. Md. Rule 628 a 2. An officer of appellant admitted, in the course of his testimony, that Housing Equity Corp. had distributed monies to its officers, without consideration therefor. The appellant was possessed of little or no assets and, in any event, was insolvent and unable to pay the judgments held by appellees. At the conclusion of the hearing, Judge Mathias appointed a receiver for the appellant corporation and Housing Equity Corp. noted an immediate appeal from this interlocutory order. Md. Ann. Code, Courts and Judicial Proceedings Article § 12-303 (c) (4).

In this Court, appellant posits to us the following question:

“Whether sellers of land to a corporate nominee (without personal liability on the part of its shareholders) holding a deficiency judgment against the corporation for the unpaid balance due on the deferred purchase price may have a receiver appointed to bring suit against the shareholders for money the corporation transferred to them without consideration from the proceeds of the resale of a part of the property which the corporation resold with the original sellers’ knowledge and permission? ”

When we peel away the rhetorical facade, we perceive that we are confronted by the single issue of whether the hearing judge abused his discretion in appointing a receiver for the appellant corporation.

The General Assembly, by Laws 1890, ch. 558, authorized judgment creditors . .to require the [judgment] debtor to submit to an examination in regard to his financial condition and ownership of property.” 2 J. Poe, Pleading and Practice § 707B (5th ed. H. Tiffany 1925). The practice of permitting such examination of the judgment debtor by judgment creditors, styled “Supplementary Proceedings,” continues today, but now it is permitted by a rule of procedure rather than statute. Md. Rule 628 provides in pertinent part:

“a. When, Where and How Brought.
1. When Examination May Be Had.
At any time within which an attachment or execution might issue upon judgment, or a recorded lien of the State of Maryland or the United States of America, upon satisfactory proof being made to the court by affidavit or otherwise by the creditor that it is probable that the debtor has property or credits which would be liable to said attachment or execution and that the said debtor is concealing or has concealed or disposed of the same with intent to evade the effect of said judgment, or recorded lien, or at any time after the expiration of sixty (60) days from the entry of any final judgment or recorded lien where said judgment has not been paid or satisfied, the court wherein such judgment was rendered or wherein said lien was recorded shall issue an order requiring said debtor to attend and be examined concerning said property or credits at a time and place specified in said order.
d. Special Relief for Judgment Creditor.
Under sections a, b and c of this Rule the court shall grant relief unto said judgment creditor by an order in the nature of injunction, decree for specific performance, writ of mandamus, or for the appointment of a receiver, and shall pass such order as will subject the property or credits of judgment debtor either in his own hands or in the hands of any person to the operation of the judgment provided that a copy of such order or decree shall be served upon judgment debtor, or other person giving him proper opportunity to be heard by the court passing such order or decree. In the event that the judgment debtor, or other person having been duly served, fails to answer or appear by the date provided in such order or decree, or if said judgment debtor, or other person shall be twice returned non est, such order or decree shall become final.”

Judge Smith, for the Court, in Clinton Petroleum Services, Inc. v. Norris, 271 Md. 665, 672, 319 A. 2d 304, 308 (1974), observed that, “Our rule today reads almost exactly as the statute read when Mr. Poe wrote almost 50 years ago.” Judge Smith further noted the breadth of the scope of Supplementary Proceedings by commenting:

“. . . [t]hat [the] rule is intended to provide aid to a judgment creditor in collecting a judgment by permitting a searching examination as to the assets of the debtor. In other words, it provides, in aid of execution, for what was labeled in the trial court as a ‘fishing expedition.’ ” 271 Md. at 671.

The Court of Appeals, in Wolcott v. Quick, 253 Md. 543, 546, 253 A. 2d 521, 522 (1969), speaking through Judge Finan, stated:

“It is sufficiently clear as to scarcely brook discussion that one of the remedies the Rule [628] makes available to the judgment creditor is the appointment of a receiver for the assets of the judgment debtor.”

Judge Finan added that, 253 Md. at 546:

“The lower court’s further holding, that the receivership proceedings prayed for by the judgment creditor could only be initiated in the equity side of the court, was likewise in error. Rule 628 d confers jurisdiction on a court of law to grant to the judgment creditor the special relief enumerated, even though it be in the nature of equitable relief.”

Much of appellant’s argument in this Court is directed toward the right vel non of a receiver to proceed against the stockholders, officers and directors of the insolvent corporation. That issue, however, must await another day; it is not before us. All that we consider in this appeal is, as we have previously indicated, whether Judge Mathias abused his discretion in appointing a receiver.

The record reveals that the appellees, at one point early in the commercial relationship between the parties, rejected a partial payment of $220,000 on the promissory notes that they held from Housing Equity Corp. This appellees did, apparently, for income tax reasons. The $220,000 represented excess funds from a sale of a parcel of land to the Ford Motor Company, after the payment of expenses including a partial payment to appellees of $625,000. The $220,000 was apparently retained by appellant in its treasury. The sum later was reduced, we are told, after deductions for escrow and other charges to $172,555. An estimated $167,000 was taken from appellant by its shareholders, Messrs. David R. Lawson, Bernard Segerman and Harold Simon, as a transfer without consideration. Most of the remainder was used, according to testimony of a corporate officer, to pay other bills connected with the sold property.

Appellant’s argument here seems to imply something odious in the appellees’ income tax reasons for not accepting the $220,000 at the time it was offered. Appellant then weaves upon that implication the flimsy fabric that the desire to avoid tax consequences somehow excuses appellant from having a receiver appointed to take charge of its assets and to make a determination with respect to whether “. . . [the shareholders, officers or directors] may be indebted to Housing Equity Corporation, and if such indebtedness is determined to exist, to make demand for payment. . . .”

We observe no abuse of discretion by Judge-Mathias in appointing a receiver for the appellant. There was evidence from which he could have concluded that the judgments held by appellees were not paid within 60 days from the date thereof, that certain assets of the appellant had been transferred, without consideration, to the shareholders, although the transfer apparently occurred before the onset of litigation between the parties hereto, and that justice required the appointment of a receiver as prayed by appellees.

We make clear that we do no more in this case than hold that the hearing judge did not abuse his discretion in appointing a receiver for the appellant and cloaking the receiver with authority to prosecute such course or courses of action as the receiver, within the ambit of the order appointing him, may deem appropriate. We are not to be construed as expressing any opinion, pro or con, upon the merits of any action that may be brought by the receiver.

Order affirmed.

Costs to be paid by appellant.

      . The factual situation leading to the execution of the notes is set out in Housing Equity Corp. v. Joyce, 265 Md. 570, 290 A. 2d 769 (1972).

      . The same day the judgments were recorded and made absolute in Montgomery County.

      . Md. Ann. Code, Corporations and Associations Article § 3-413 (c), confers upon a corporate creditor the right to “. . . petition a court of equity to dissolve the corporation on grounds that it is unable to meet its debts as they mature in the ordinary course of its business.” The court may appoint a receiver for such a corporation. Corp. Art. §§ 3-414, 3-415.

      . The history of Maryland’s Supplementary Proceedings is discussed in D. Joseph & E. Ottenheimer, Supplementary Proceedings in Maryland 1-9 (1955).

      . See D. Joseph & E. Ottenheimer, supra note 4, at 11-12.

      . Judge Hammond (later Chief Judge), in Dundalk Holding Co. v. Easter, 215 Md. 549, 553, 137 A. 2d 667, 669 (1958) discussed the jurisdiction and authority for a law court to grant the equitable relief provided in Md. Rule 628 d.