text:
    WILLIAM L. SCHAEFER, PERSONAL REPRESENTATIVE OF THE ESTATE OF MAUD A. SCHAEFER v. MARGARET E. HEAPHY
    [No. 817,
    September Term, 1979.]

      Decided March 6, 1980.

      The cause was argued before Moore, Mason and Wilner, JJ.

      J. Marcus Slowiak for appellant.

      Gregory L. Stephenson, with whom were Connell & Clinton on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

After suffering from the progressively debilitating effects of emphysema for several years, Maud Schaefer finally died on February 19,1978. She left no Will; and, on April 5,1978, her son William Schaefer was appointed by the Orphans’ Court of Anne Arundel County as personal representative of Maud’s Estate.

On October 2,1978, Mrs. Schaefer’s sister, Margaret (May) Heaphy, filed a claim in the Estate for $24,050. The claim was in two parts. The first was for $9,950, representing “Services rendered as Housekeeper and Companion” at $50.00 a week for the 199-week period from June, 1972, to March, 1976. The second part was for $14,100, for “Services rendered as Housekeeper, Companion and 24 hour nursing care” at $150.00 a week for the 94-week period from March, 1976, to February, 1978. Mr. Schaefer denied the claim, whereupon Mrs. Heaphy filed a written request with the Register of Wills for a hearing before the Orphans’ Court. A bifurcated evidentiary hearing was, in fact, held on January 25 and April 10,1979, following which the court disallowed the first part of the claim — for services rendered during 1972-1976 — entirely, and allowed $2,000 on the remaining part of the claim. The court did not explain how it arrived at its decision to allow the sum of $2,000.

William has taken a direct appeal from that allowance to this Court (Courts article, § 12-501), contending that (1) the Orphans’ Court had no jurisdiction to entertain his aunt’s claim in the first place, (2) it erred in permitting Mrs. Heaphy to testify, and (3) Mrs. Heaphy did not overcome the presumption that such services as she rendered to her sister were gratuitous and without promise or expectation of payment. We disagree with appellant’s first claim, agree with his third, and need not consider his second.

(1) Jurisdiction of the Orphans’ Court

For 167 years, the law was quite well settled in this State that, although an orphans’ court had the authority to “allow” or “disallow” claims filed against a decedent’s estate, it had no “jurisdiction” to adjudicate their validity. The precise issue before us is whether that was changed with the 1969 revisions to the testamentary article of the Code (then Art. 93, now Estates and Trusts article).

The orphans’ courts have always been considered as courts of special and limited jurisdiction, exercising only those powers specifically conferred by law. See Crandall, Exec. v. Crandall, 218 Md. 598, 600 (1959). Their ability to render final judgments with respect to creditors’ claims therefore depends upon the scope of statutory authorization in that regard.

The first comprehensive enactment dealing with the State testamentary law, and thus with the functions and powers of the orphans’ courts, appears to have been Laws of Md., 1798, ch. 101. In subchapter 9, § 13 of that Act, the General Assembly declared that:

“... [N]o executor or administrator shall be obliged to discharge any claim, of which vouchers and proofs shall be exhibited as aforesaid, but may reject, and at law dispute the same, in case he shall have reason to believe that the deceased never owed the debt, or had discharged the same, or a part thereof, or had a claim in bar; but every executor or administrator shall be obliged to discharge the same, or paya just proportionable part thereof, if passed by the orphans court granting his letters, unless he shall appeal from the decision of the court in the manner hereafter directed.” (Emphasis supplied.)

Provisions for appealing the decisions of the orphans’ court, to which the underscored language in § 13 undoubtedly referred, were set forth in subchapter 14, § 18 of the Act. Section 18, in relevant part, stated that “[a]ny person who may conceive him or herself aggrieved by any judgment, decree, decision or order, of the orphans’ court, shall have the liberty of appealing to the court of chancery, or to the general court of the shore whereon such orphans court is held____” This appeal was to be heard on the record made in the orphans’ court, with the appellate court either affirming the decision below or directing “in what manner it shall be changed or amended.”

Although presumably subject to the superior authority of the appellate court, should an appeal be taken, provision was made in § 20 of subchapter 14 that “every judgment, decree, decision or order, of the said [orphans'] court, may be enforced by attachment and sequestration as aforesaid; and if the said judgment, decree, decision or order, be for paying money, the property sequestered may, at the discretion of the court, be applied to the purpose for which such judgment, decree, decision or order, was given.”

Although the Court of Appeals had no opportunity to consider the nature and extent of an orphans’ court’s “jurisdiction” in this area under the 1798 Act, and thus no definitive statement of it appears, the combination of these provisions would seem to indicate that, under that Act, an orphans’ court could render a binding judgment, enforceable against the executor, with respect to creditors’ claims. Unless the executor or claimant successfully appealed an adverse decision, the order of the orphans’ court allowing or disallowing the claim would stand. If the claim were disallowed, it would not be paid; if allowed, the executor was “obliged to discharge the same.”

This was significantly changed, however, by Laws of Md., 1802, ch. 101. In section 9 of that Act, the General Assembly declared that,

“... in no case shall the order made by the orphans court, or by the register of wills, that an account or claim will pass when paid, be deemed of validity to establish such account or claim, but in case the executor or administrator thinks fit to contest the same, such account or claim shall derive no validity from the order aforesaid, but shall be proved in the same manner as if no such order had been made.”

This provision, in substantially the same form, remained part of the statutory law of Maryland until 1969; and, during the period of its existence, it was given full effect by the Court of Appeals. That effect was first explained in Levering v. Levering, 64 Md. 399, 413-414 (1885), as follows:

“The Orphans Court can pass upon claims against the estates of decedents, but its determination is not final or conclusive. If the claim is disallowed, the claimant is not precluded from seeking his remedy in a Court of law or equity. If the claim is allowed, the executor or administrator may refuse to pay it. The decision of the Orphans Court is only prima facie, and if the claim is allowed, only operates as a protection extended to the executor in the event of its liquidation by a disbursement of the funds held by him in his representative capacity [citations omitted].
“The Orphans’ Court with its limited powers and circumscribed jurisdiction, cannot finally and conclusively determine any claim brought by a creditor against the estate of a decedent.
“The adjudication and conclusive determination of matters in controversy between an executor or administrator and creditors, appertain ‘exclusively to the Courts of law and equity.’ ”

The reasoning, and conclusion, of the Court, though eminently pragmatic, seem to have been somewhat indirect. There was no question about the authority of the orphans’ court to “pass upon” creditors’ claims; to that extent, at least, the court would have had subject matter “jurisdiction” over such claims. The nub of the matter was that because either party could ignore the decision of that tribunal and have the issue litigated de novo in another court, there was no way in which the orphans’ court could enforce its determination. What it seems to have lacked was not so much “jurisdiction,” in the traditional sense of the word, but rather the ability to render a final, binding, and enforceable judgment. The court was competent to consider the matter, but not competent to effectively resolve it.

The rationale underlying the conclusions reached in Levering became unimpeachable with the enactment of Laws of Md., 1920, ch. 674, which, as once amended and codified in 1957 Code, art. 93, § 120, provided that,

“If a claim shall be asserted against or exhibited to an administrator or executor in any form, whether sworn to or passed by the orphans’ court or not, and he shall refuse payment thereof in writing, such claim shall be forever barred unless the creditor shall bring suit upon the same within six months [originally nine months] after such rejection.”

This statute of limitation cemented the impotence of the orphans’ court in the area of creditors’ claims. Not only could the executor ignore the allowance of a claim by the orphans’ court, but if the “successful” creditor failed to file his action in the circuit court within the allotted time, his claim was extinguished, in absolute derogation of the orphans’ court order. Thus it was that the Court of Appeals could say in Montgomery Co., Etc. v. Donnally, 195 Md. 442, 446 (1950),

“If a claim is filed against an estate being administered in the Orphans’ Court and the representative of that estate refuses payment, the Orphans’ Court has no jurisdiction to adjudicate the claim and the claimant must institute suit on the claim against the personal representative in a court of law.”

If this is still the law, we might be in a curious position of having to dismiss the appeal for want of a final judgment rather than reversing an invalid order of the orphans’ court because of its lack of jurisdiction. Our lack of jurisdiction would be paramount over that of the orphans’ court. The question, however, is whether the Legislature conferred the requisite “jurisdiction” in the 1969 revision, and thus made moot the doctrines enunciated in Levering and its progeny.

At first blush, the answer would seem to be “no.” The basic jurisdiction of the orphans’ court, in the revised article, is set forth in § 2-102 (a) (Estates and Trusts article, hereafter referred to as “ET” ). This provides, in relevant part,

“The court may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent____The court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred.”

The Comment to this section, as it was enacted in 1969, states that it was derived from former sections 259 and 289 of art. 93. It states also that “ftjhe statute is not intended to change the existing powers of the Court except in two instances” not directly relevant here. (Emphasis supplied.) Read in context, it would appear that the phrase “[t]he statute” means the entire revised article, rather than just § 2-102, thus suggesting the continued vitality of the Levering-Donnally doctrine,

A clearly contrary intent, however, appears in Title 8 of the article, dealing specifically with creditors’ claims; and this, we believe, is controlling.

ET, § 8-101 (b) states that, after appointment of the personal representative and until the estate is closed, “the procedures prescribed by § 8-104 shall be followed” in enforcing claims against the estate. Section 8-104 provides three methods of presenting claims: (1) delivery to the personal representative; (2) delivery to the register of wills; or (3) commencement of a lawsuit against the estate (or a distributee of estate property) within the time allotted for filing claims.

If the creditor chooses the third option — direct resort to a court of law or equity — his success or failure will, of course, depend upon the judgment rendered therein. Section 8-107 (d) provides that “[a] judgment in an action against a personal representative to enforce a claim against the estate of a decedent is an allowance of the claim.”

If the creditor uses either of the other options — as she did in this case — the process becomes governed by § 8-107 (a) and (b). Subsection (a) gives the personal representative three choices — one implict, two explicit. The implicit choice, of course, is to allow the claim in its entirety. If he chooses not to do that, he must notify the claimant either (1) that the claim is disallowed in whole or in a stated amount, or (2) that he will petition the orphans’ court to determine whether the claim should be allowed. If the personal representative disallows the claim directly, as he did here, subsection (b) becomes operative. That indeed is the critical provision. It states, in relevant part:

“If the claim is disallowed in whole or in a stated amount, the claimant is forever barred to the extent of the disallowance unless he files a petition for allowance in the [orphans'] court or commences an action against the personal representative or against one or more of the persons to whom property has been distributed.” (Emphasis supplied.)

A significant change was made with the enactment of this section. Under former §§ 119 and 120 of art. 93, the creditor’s only recourse upon disallowance of the claim by the personal representative was to “commence a suit for recovery” in the circuit court. Failure to “bring suit” upon the claim within six months after rejection by the personal representative barred the claim. No resort to the orphans’ court was possible, for, as noted, the personal representative was not at all bound by the determination of that tribunal. If the one available recourse — an action in the circuit court — was not followed, the claim was extinguished and became absolutely unenforceable. Section 8-107 (b) provides another option, however. It expressly permits the creditor to petition the orphans' court for allowance of the claim, indicating a jurisdiction in that court not previously (at least since 1802) available. The draftsmen of the revised article appeared to recognize the change when they noted, in the Comment to § 8-107, “[although the Court has the power to adjudicate the validity of the claim, either party may request a jury trial and thereby require the adjudication to be shifted to a law court.” (Emphasis supplied.) This statement is, of course, diametrically contrary to the long established construction of the prior law.

The significance of this change is heightened by a subtle change made by ET, § 8-108. Former § 109 of art. 93 required an administrator to discharge all “just claims” within a specified period of time. In context, this meant claims that he had not chosen to disallow or claims required to be paid by virtue of judgments rendered in actions filed by creditors pursuant to §§ 119 and 120. It obviously did not require the payment of claims merely upon their allowance by the orphans’ court. Levering v. Levering, supra; Montgomery Co., Etc. v. Donnally, supra.

In contrast, § 8-108 (a) provides, in relevant part:

“Upon the expiration of six months from the date of the first appointment of a personal representative, the personal representative shall pay the claims allowed against the estate in the order of priority prescribed in § 8-105____, A person with a valid unbarred claim or with a valid unbarred judgment who has not been paid may petition the [orphans’] court for an order directing the personal representative to pay the claim to the extent that funds of the estate are available for payment.” (Emphasis supplied.)

Ample authority is provided to the court to enforce such an order. See ET, §§ 2-103 and 7-403.

It thus appears that the discretion provided in the Act of 1802 has been effectively eliminated. A creditor whose claim has been disallowed by the personal representative may litigate the issue in the orphans’ court; and, if he chooses to do so and is successful, the order of that tribunal is binding upon and enforceable against the personal representative. The deficiency in the authority of the orphans' court alluded to in Levering — that which effectuated its lack or loss of “jurisdiction” — has now been overcome. We therefore conclude that, in the circumstances of this case, the Orphans’ Court of Anne Arundel County did have jurisdiction to consider and adjudicate the validity of Mrs. Heaphy’s claim. See 56 Op. Att’y Gen. 377 (1971).

(2) But Did It Reach The Right Decision ?

One hundred years ago, in the case of Bantz v. Bantz, 52 Md. 686, 694 (1880), the Court of Appeals laid down the following rule:

“In order to justify a claim for services being allowed against the decedent, there must have been a design, at the time of the rendition, to charge, and an expectation on the part of the recipient to pay for the services. The services must have been of such a character, and rendered under such circumstances, as to fairly imply an understanding of payment, and a promise to pay. There must have been an express or implied understanding between the parties that a charge for the services was to be made, and to be met by payment____”

Subsequently, in Bixler v. Sellman, 77 Md. 494, 496 (1893), the Court made clear that this rule applied “only when a claim of this character is made by a member of the family of the decedent, for, of course, it must be conceded that generally the law implies a promise to pay for services rendered and accepted; but a well recognized distinction exists where the service is rendered by a member of the family of the person served. In the latter case a presumption of law arises that such services are gratuitous. ” (Emphasis supplied.)

This rule, and the accompanying presumption, are still the law in Maryland. See Keller v. Keller, 257 Md. 522 (1970); Jones v. Jones, 146 Md. 19 (1924).

Notwithstanding appellee’s suggestion to the contrary, we have little doubt that Mrs. Heaphy was a member of Mrs. Schaefer’s “family,” for purposes of the presumption stated in Bixler. She was Mrs. Schaefer’s sister (which, cloning aside, is possibly the closest of biological relationships); moreover, she lived in the same household with Mrs. Schaefer for six years. She was not merely a boarder, as in Jones v. Jones, supra. Her sister’s house was her home, her only home. Compare Shaefer v. Hewes, Executor, 225 Md. 207 (1961). The two of them together constituted the household, and together they made it operate. In that circumstance they most certainly satisfied the definition of “family” announced in Jones v. Jones, supra, 146 Md. at 25: “a collective body of persons who form one household, under one head and one domestic government, and who have reciprocal natural or moral duties to support and care for each other.”

Once the family relationship is established and the presumption that the services were rendered gratuitously becomes operative, the courts have required very clear and convincing evidence in order to overcome the presumption. Quoting in part from Burgess v. Burgess, 109 Pa. St. 312, the Court said in Bixler, 77 Md. at 497, in the context of services performed by a granddaughter,

“The vague testimony of witnesses as to the declarations of the decedent that he intended to pay or would see the appellant paid, cannot have that effect, when taken in connection with all the other facts of this case. As was said by the Supreme Court of Pennsylvania, ‘such a claim as this is pregnant with danger, as well to the rights of creditors, as to the other heirs, and cannot of course be entitled to countenance from the court, unless accompanied with clear proof of an agreement not depending upon idle and loose declarations, but on unequivocal acts — as for example, a settlement of an account, or money paid by the father to the son as wages, distinctly thereby manifesting that the relation which subsisted was not the ordinary one of parent and child, but master and servant.’ ”

See also Keller v. Keller, supra, 257 Md. 522; Lowe v. Lowe, 111 Md. 113 (1909); Duckworth v. Duckworth, 98 Md. 92 (1903).

It is with this very careful, if not jaundiced, eye that we look at the evidence adduced in support of Mrs. Heaphy’s claim.

Mrs. Heaphy, a widow, originally moved into her sister’s home in 1972 on a temporary basis, apparently as a “house sitter,” when Mrs. Schaefer had to spend some time on the Eastern Shore following her husband’s automobile accident. When Mrs. Schaefer returned home, however, she asked Mrs. Heaphy to remain with her. It is not entirely clear whether Mr. Schaefer ever returned or when he died, but the record does indicate that Mrs. Schaefer would otherwise have been alone in the house and wanted a companion. Until 1976, Mrs. Schaefer was able to get around, and the two sisters ran the household together. Mrs. Schaefer bought the groceries and the two shared the housework. Mrs. Heaphy contributed $10 a week toward the enterprise, but otherwise paid no room and board, although she apparently could have afforded to do so.

Beginning some time in 1976 — the date is not clear — Mrs. Schaefer’s health began to deteriorate more dramatically and Mrs. Heaphy started to take over more of the household chores. This included tending to her sister’s personal needs on an increasingly frequent and constant basis.

Nowhere in the record, however, is there any evidence of a specific agreement to pay, or an expectation of receiving, any particular remuneration for these services. Over objection, Mrs. Heaphy testified about her sister wanting to give her a “strong box,” but her testimony was most unclear, and ail that really appears from it is that Mrs. Schaefer died before consummating any gift or other transaction regarding the “strong box.” She also said that on one occasion, unspecified as to date, Mrs. Schaefer wrote a note and put $20.00 in it for Mrs. Heaphy; but neither the note nor its contents were revealed.

The most specific evidence offered by Mrs. Heaphy was (1) that her sister “always told me that you can stay here as long as you want to May, as long as Billy [Mrs. Schaefer’s son and appellant here] has the house this is your home----” and (2) “I just thought Billy would take care of me. I thought he would leave me his mother’s stuff____”

Mrs. Heaphy’s daughter, Mrs. Lewis, stated that Mrs. Schaefer had told her that “if my mother hadn’t taken care of her she would have had to sell everything and move into a nursing home which she did not want to do, so that by my mother staying there and taking care of her, that when she passed away she would see that she was taken care of.” Mrs. Lewis also indicated that “there was something in writing, which we were never around to see____”

Mr. Schaefer denied any such writings, and also denied that any promise had been made by his mother.

This evidence, in its most favorable light, falls way short of establishing the requisite agreement for compensation, the “master-servant” relationship. Vague promises to “take care of” Mrs. Heaphy simply do not suffice to overcome the presumption that Mrs. Heaphy acted gratuitously — with loving kindness and in discharge of her sororal obligation to her sick and dying sister — rather than with the expectation of being paid $150 a week. Even giving credence to Mrs. Heaphy's testimony, the court erred in allowing the claim for $2,000.

In light of this conclusion, it is unnecessary to consider whether Mrs. Heaphy’s testimony was rendered inadmissible or if she was rendered incompetent as a witness by the “Dead man’s statute” (Courts article, § 9-116.)

Order allowing claim for $2,000 reversed; appellee to pay the costs.

      . Her letter to the Register, filed December 8,1978. was docketed in the files of the Orphans’ Court. It said, in its entirety: “I am requesting the scheduling of a hearing regarding the disallowance of claims filed by me, Margaret E. Heaphy, on the 2nd day of October, 1978, against the estate of Maud A. Schaefer.’

      . In a preamble to that 1798 Act, the General Assembly stated a truism that, for many people, has remained valid to this very day: “[T]he laws and regulations relative to the estates of deceased persons, comprehending a great variety of subjects, and interesting to citizens of every description, not only are become complicated and difficult to be understood, but are found by experience to be greatly inadequate to the purposes for which they were framed.” Compare the statement in the transmittal letter of the_(1968) Second Report of the Governor’s Commission To Review and Revise the Testamentary Law of Maryland: “There is no field of Maryland law whose statutory framework is more archaic, disorganized, cumbersome and illogical. Plus ca change, plus c’est la meme chose.

      . See Md. Ann. Code, 1964 Repl. Vol., art. 93, § 108. See also Laws of Maryland, 1969, ch. 3.

      . See also Marbury v. Ward, 163 Md. 330 (1932); State v. Md. Casualty Co., 164 Md. 69 (1933); 10 M.L.E., Executors and Administrators, § 125.

      . The 1969 revisionsiLaws of Md., 1969, ch. 3) constituted a rewriting of art. 93 of the Code. The revised article, by reason of the progressive recodification of the entire Maryland Code, now appears as the Estates and Trusts article. For convenience, we shall use the current designation.

      . The two instances referred to in the Comment are (1) the authority of the Register of Wills under § 5-301 to conduct and superintend administrative probate, in effect a withdrawal of jurisdiction from the court, and (2) the inclusion, by virtue of i 1-301, of realty as part of the probate estate, thus extending the court’s probate jurisdiction to that hitherto excluded form of property. Neither of these changes is apparent from § 2-102 itself, however, thus leading one to conclude that, in the context used, “[t]he statute” takes in more than § 2-102 alone.

      . “The [orphans’] court has the same legal and equitable powers to effectuate its jurisdiction, punish contempts, and carry out its orders, judgments, and decrees as a court of record with general jurisdiction in equity.”

      . The exercise of power in violation of an orphans’ court order may constitute a breach of fiduciary duty rendering the personal representative personally liable to injured parties. See also § 8-109.

      . We see nothing in Comptroller v. Russell, 284 Md. 174 (1978), or Blum v. Fox, 173 Md. 527 (1938), cited by appellant, as requiring a different conclusion. In Russell, the Court reaffirmed the position it had taken nearly a century earlier in Bonaparte v. State, 63 Md. 465 (1885), and concluded that an orphans’ court had no jurisdiction to adjudicate a dispute between the Comptroller of the Treasury and a personal representative over State income taxes allegedly owed by the decedent. But this rested soleljr upon the distinction drawn between taxes and “private” claims, and in no way suggested a lack of jurisdiction over the latter. Blum v. Fox was decided long before the 1969 statutory revisions and has no relevance to the question at hand.
      Mrs. Heaphy’s handwritten note to the Register of Wills, although not captioned as a petition, clearly was intended as such and will be given that effect.

      . The evidence showed that Mrs. Heaphy received an income from certain real estate owned by her.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    FREE STATE BANK & TRUST COMPANY v. A. JAMES ELLIS
    [No. 865,
    September Term, 1979.]

      Decided March 7, 1980.

    The cause was argued before Gilbert, C. J., and Thompson and Liss, JJ.

      James C. Chapin, with whom were John C. Joyce and Duckett, Orem, Christie & Beckett on the brief, for appellant.

      Anthony J. McMahon, with whom were Anderson,

      Pendleton, McMahon, Peet & Donovan on the brief, for appellee.

      Amicus curiae brief submitted by Thomas P. Smith, Shelly E. Mintz and Baskin & Sears for John and Claire M. Buete.
   Gilbert, C. J.,

delivered the opinion of the Court.

Free State Bank & Trust Company (Bank) has come to this Court in an effort to reverse a judgment of $80,000 against it for negligence in releasing collateral that had been pledged in order to secure a loan. At the same time the Bank seeks to vacate a post-trial order of the Circuit Court for Montgomery County in which that court awarded certain substituted collateral to the appellee, A. James Ellis. The Bank is joined in the latter effort by John and Claire M. Buete, who assert that the post-trial order deprived them of their property without due process of law. We, by order, permitted the Buetes to file an amicus curiae brief in the case. For the reasons stated infra, we affirm the judgment entered on the jury’s verdict, but we vacate the post-trial order.

THE FACTS

Ellis was a member of the Board of Directors of the Bank and of its Executive Committee. In March 1974, Ellis obtained a loan from the Bank for $300,000. As collateral for the loan, Ellis furnished the Bank with a second deed of trust on his residence, but because his equity in the home was insufficient, he assigned to the Bank a promissory note in the amount of $200,000, payable to Ellis by Mr. Jerry Wolman. The note was secured by a second deed of trust on Wolman’s home. Both the Wolman note and the second deed of trust had been held by Ellis as security for debts owed to Ellis by Wolman and W. W. A., Inc., a Wolman owned corporation. Ellis did not participate in the Board of Directors’ vote on the loan.

Subsequently, Wolman had a buyer for his residence, and he approached Ellis for a release of the collateral in order that he could effect the sale. Ellis said that Wolman should work it out with the Bank, and that anything they agreed to do would be all right with him so long as he remained secured. The record is not clear as to exactly what next happened, but there came a time when the Board of Directors of the Bank was asked to accept a “wraparound deed of trust” in the amount of $160,000, securing a note for the same sum, as collateral for the loan to Ellis instead of the $200,000 collateral previously posted. The substitution of the collateral was discussed and a vote taken. Ellis abstained from voting. It is clear from the testimony that the Board voted approval. The “wraparound deed of trust” and note it secured were payable to Wolman by Dr. and Mrs. John H. Palmer, the purchasers of the Wolman residence. Wolman endorsed the Palmer note to the Bank as follows:

“Pay to the order of Freestate [s/c] Bank to be held as collateral and for collection.
s/ Jerry Wolman”

The note recites that it is “[s]ubject to further terms and conditions as set forth in Deed of Trust bearing even date and securing” Wolman. The trustees under the Palmer-to-Wolman deed of trust seemingly remained as trustees. Notwithstanding the authorized release of the Ellis Deed of Trust, the $200,000 note from Wolman to Ellis is still in possession of the Bank.

Dr. and Mrs. Palmer, for a time, divided their payments between Suburbia Federal Savings and Loan, the holder of the first deed of trust on the Palmer residence, and the account of Wolman at Free State. After Wolman assigned his interest in the Palmer note to the amici\ Mr. and Mrs. Buete, the Palmer payments were credited to the account of the Buetes.

Somewhere along the way, Ellis became aware of the fact that the Bank had released his secured interest in the Wolman residence and had received in substitution what he described as “a piece of paper, one hundred sixty thousand dollars, from Dr. Palmer to Mr. Wolman. What value it is to me, I don’t know.”

Ellis sued the Bank in a five count declaration. The trial judge directed verdicts as to two counts and the case went to the jury on count I, breach of contract; count II, negligence; and count III, conversion. The jury found for Ellis on the negligence count, and as we have previously stated, assessed his damages in the amount of $80,000.

The Bank advances three reasons why it believes the trial court should be reversed. We shall discuss each issue in the order they have been put to us by the Bank.

I.

“The trial court erred in denying the Bank’s motion for directed verdict where Ellis failed to introduce evidence of the commercially reasonable standard of care to which the Bank was held.”

The Bank, in its argument, seeks to have us adopt a rule that expert testimony is required in order to establish a negligent deviation from the “commercially reasonable standard” against which the Bank’s actions are to be measured, citing, Crockett v. Crothers, 264 Md. 222, 285 A.2d 612 (1972); Tempchin v. Sampson, 262 Md. 156, 277 A.2d 67 (1971); Johns Hopkins Hospital v. Genda, 255 Md. 616, 258 A.2d 595 (1969); and Fink v. Steele, 166 Md. 354, 171 A. 49 (1934). The Bank contends that such testimony is needed “to provide the jurors with any understanding of the ‘commercially reasonable’ standard against which they were to measure the Bank’s actions.” Because Ellis produced no expert testimony, the Bank concludes that he failed to meet the burden of proof and that, therefore, the trial court should have directed a verdict in the Bank’s favor.

The Bank then quotes from Third National Bank v. Boyd, 44 Md. 47, 64, 22 A.R. 35, 41 (1874), where the Court said a bank was “‘to exercise such care and diligence in the custody or keeping of them [a customer’s bonds] as at the time, banks of common prudence in like situations and business, usually bestowed in the custody and keeping of similar property belonging to themselves....’” The Bank interprets that language, in the light of Crockett, Tempchin, Genda and Steele, to mean that “expert testimony” must be produced by a plaintiff, suing a bank for negligence, to establish the reasonable and accepted standard of care that banks in the community exercise in their dealings with customers, and then demonstrate that the defendant bank failed to meet that standard. The Bank, in the instant case, asserts that the reasonably accepted standards, dealing with transactions such as that involved in the matter subjudice, are “assuredly beyond the common knowledge of the jurors.” We have a different view.

Although there may be situations that necessitate expert testimony relative to the standard of care required of a bank in dealings with customers, this case is not of that category. Certainly, no expert testimony was needed to show that banks do not ordinarily release the collateral of a customer and take in substitution thereof a paper writing which is not collateral, and which does no more than allow the bank to collect monies due on the collateral and credit it to the account of another. No expert testimony is needed to show the jurors that banks do not ordinarily release a deed of trust that secures a $200,000 promissory note payable to the bank’s customer and which has been assigned to the bank as collateral for the customer’s loan, and accept as substitute collateral a note secured by a deed of trust, payable to a party other than the bank’s customer, and which is not even assigned to the bank, except, for all practical purposes, for collection. No expert testimony is needed to demonstrate to the jury that by doing what it did in the instant case, the Bank stripped its customer of his security for a $200,000 loan to another party.

There are situations in medical malpractice cases that are so grossly negligent as not to require expert testimony relative to the standard medical care in the community, as, e.g., where the wrong leg is amputated, the wrong tooth is extracted, the wrong patient is subjected to an operation. See McClees v. Cohen, 158 Md. 60. 148 A. 124 (1930) (dentist extracted wrong tooth); Suburban Hospital Association v. Hadary, 22 Md. App. 186, 322 A.2d 258 (1974) (doctor performed liver biopsy using unsterile needle). See also Annot., 81 A.L.R.2d 597, and cases cited therein. We think that even if expert testimony is ordinarily needed to prove the standard of reasonable care used by banks in the community in its dealings with its customers, the case now before us is of the type that the average juror would know without expert testimony that banks simply do not ordinarily do what the Appellant Bank did in this case. No expert testimony was required to demonstrate the negligence of the Bank in its release of the Wolman deed of trust to Ellis.

II.

“The trial court erroneously denied the Bank’s motion for directed verdict on the grounds that Ellis failed to produce evidence of the value of the property which was allegedly diminished in value by the negligence of the Bank.”

The short answer to the Bank’s argument is that Ellis did testify that had foreclosure proceedings been instituted on the Wolman Deed of Trust, there was sufficient equity available in the Wolman residence to satisfy Wolman’s debt to Ellis. That testimony, if believed, was sufficient to show the value of the property that was negligently released from the encumbrance of the deed of trust. The Bank, however, points out that it still has the $200,000 Wolman note which it says is “unimpaired and viable.” The Bank claims that Ellis’ allegation that the note is valueless is but a bald assertion, pointing out that a holder of a note may reduce it to judgment without foreclosing on property that secured the note. Alexander v. Hergenroeder, 215 Md. 326, 332, 138 A.2d 366, 369 (1957). Indubitably, the note may be reduced to judgment, but the collateral for the payment of the judgment, the deed of trust, had been released. Based on the testimony of Ellis, as long as the deed of trust remained viable, he was certain that he was protected to the full extent of the note. Once the deed of trust was released, he was left with a paper writing evidencing a debt, but providing no assurance that it would or could be paid.

Additionally, there was testimony from a witness for the Bank that the $160,000 substitute note was worth $80,000. Thus, the jury may have concluded, in arriving at its verdict of $80,000, that Ellis had suffered an $80,000 loss. Moreover, the note supposedly given by Wolman as substitute collateral was not even payable to Ellis, nor was he secured in any fashion by the “wraparound deed of trust.”

We think the trial judge properly denied the Bank’s motion for a directed verdict.

III.

“The trial court acted beyond the scope of its authority when it ordered an award of damages beyond that authorized by the jury verdict.”

On the same day that the court entered judgment on the jury’s verdict, Ellis filed a “Motion to Clarify Verdict and Judgment.” The motion advised the court that the jury had been instructed that “the $160,000 ‘wraparound’ [deed of trust] was the property of ... Ellis____” The motion sought to have the court so order and to direct that when the Ellis obligation to the Bank “is finally paid” the “$160,000 ‘wraparound’ ” be turned over to Ellis. Notwithstanding the Bank’s objection, the judge, on May 15,1978, entered an order which read in pertinent part:

“ORDERED that in addition to the judgment entered in favor of the plaintiff for $80,000 the plaintiff is the owner of, and entitled to the return of, the $160,000 note pledged as collateral with Free State Bank & Trust Company, the defendant, at such time as that loan is paid in full, including accrued interest. The plaintiff, as well, is entitled to have all payments made on the $160,000 note applied to reduce his indebtedness with Free State Bank & Trust Company and after that debt is paid in full all payments made on the note between the time of payment of the loan and transfer of the note to the plaintiff should be paid to the plaintiff.”

Our review of the trial judge’s jury instructions does not confirm Ellis’s statement that the jury was instructed that the $160,000 “wraparound deed of trust” was the property of Ellis. Nothing was said directly as to the ownership of the “wraparound” although the court did tell the jury that “the Plaintiff consented to a reduction in the value of his collateral from $200,000 to $160,000____” (Emphasis supplied.) Implicit in that comment is the clear inference that the $160,000 wraparound deed of trust wasN collateral for Wolman’s indebtedness to Ellis.

The “wraparound deed of trust,” however, was never assigned to Ellis or to the Bank, so that, on its face, it still belongs to Wolman. The $160,000 promissory note for which the “wraparound deed of trust” was given as security was, as we have previously stated, endorsed by Wolman to “the order of Freestate [s/c] Bank to be held as collateral and for collection.” The note was not endorsed to Ellis. Of equal, if not more importance, however, is that the note may be the property of another, namely, the amici, Mr. and Mrs. Buete.

We observe that the jury was never presented with the question of who owned the collateral. Had that been an issue in the case, then the Buetes would have been necessary parties. What has happened is that the Buetes, who claim ownership of the note, have had that claim effectively eradicated by the court’s order of May 15, 1979.

Ellis’s post-trial motion was, in the words of Millison v. Clarke, 32 Md. App. 140, 359 A.2d 127, cert. denied, 278 Md. 728 (1976), an attempt to seek an additur to the jury’s verdict. Maryland has not joined those jurisdictions that permit additur. Generally, additur is available in much the same way as remittitur, although at opposite ends of the spectrum, that is, as a condition that unless agreed to, the court will order a new trial.

The procedure employed in the case sub judice, appears to be, at least in this State, without precedent. While that factor would not per se negate it, we must vacate the order on the ground that the trial court was without authority to enter the post-trial order, adjudging the property rights of not only the parties to this appeal but also others not parties.

Judgment affirmed.

Order of May 15,1979 vacated.

Costs to be divided equally between the appellant and the appellee.

      . The Bank argues that while it agreed to accept the $160,000 Palmer-to-Wolman note secured by a wraparound second deed of trust in lieu of the Wolman-to-EUis second deed of trust, it did not agree to release the $200,000 note that was secured by that deed of trust.


author: Wilner, J.,

text:
    JAMES L. TURNER v. STATE OF MARYLAND
    [No. 772,
    September Term, 1979.]

      Decided March 10, 1980.

    The cause was submitted on briefs to Moore, Liss and WlLNER, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Nancy Louise Cook, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Steven D. Wyman, Assistant State’s Attorney for Baltimore City, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted by a jury in the Criminal Court of Baltimore of larceny and assault. He was sentenced to prison for 18 months on the larceny conviction and 12 years, consecutive, for the assault. In this appeal, he contends:

(1) He was improperly induced to testify in his own defense by the court’s “misadvisement” relating to burden of proof;
(2) He was wrongfully charged, convicted, and sentenced for larceny and assault;
(3) The court gave an erroneous instruction on the definition of a “principal”;
(4) The court erred in failing to grant a new trial because of incompetence of counsel; and
(5) The evidence was insufficient to sustain his convictions.

We shall consider these complaints in a somewhat different order: (5), (2), (1), (3), (4).

(5) Sufficiency of the Evidence

David Papilon stated that, on November 18, 1978, he was walking up Park Avenue, in Baltimore City, when two men accosted him and asked him for money. He refused, whereupon they led him up the outside steps of an apartment dwelling, on to the vestibule. One of the men threw him to the ground and the other searched his back pockets, removing his wallet containing $38. Papilon identified one of the men as appellant.

It so happened that Police Officer Lee Saunders and two fellow officers were driving by in a patrol car as all of this was happening. Saunders saw two black men strike a white man and drag him into a doorway where one removed a wallet from the victim’s pocket. Saunders and the other officers immediately stopped, gave chase, saw the assailants go into a nearby shack, and captured them both as they were attempting to escape through a window therein. Papilon’s wallet was found inside the shack. Saunders also positively identified appellant. Officers George Smith and Leonard Baze corroborated most of Officer Saunders’ testimony and also identified appellant as one of the two assailants.

From this, we can quickly dispose of appellant’s fifth complaint. The evidence more than sufficed to sustain the convictions of larceny and assault.

(2) Improper Charge and Sentence

For whatever reason, appellant was never formally charged with robbery, although the evidence adduced at trial would seem to have supported such a charge. Instead, he was charged (and convicted) only of the lesser included offenses of larceny and assault. Ordinarily, a defendant would be quite well satisfied with such a circumstance, and, indeed, appellant never raised any complaint about it before or during his trial. It is only after the sentences were imposed that he (or his counsel) realized that, had he been charged and convicted of robbery, his maximum sentence would have been 10 years. The assault and larceny convictions would have merged into the robbery conviction as lesser included offenses. By failing to charge robbery, he thus claims, the State has managed to secure a longer sentence than was otherwise possible; and this, he cries, is unfair, unconstitutional, and illegal. He relies on Roberts v. Collins, 544 F.2d 168 (4th Cir. 1976), and asks that his convictions be reversed.

In Roberts, the Court had before it, in a habeas corpus proceeding, a situation in which a defendant had been charged with a variety of offenses, headed by two counts of assault with intent to murder. All of this grew out of an attack on two police officers. At some point, and for reasons not entirely clear in the Opinion of the appellate or the district court (Roberts v. Collins, 404 F. Supp. 119 (D. Md. 1975)), Roberts entered pleas of guilty to a number of the charges, including simple assault. Based upon these pleas, he was convicted on the two assault charges and was sentenced to consecutive terms of 20 years on each conviction — a total of 40 years. Had he been tried and convicted of the two assaults with intent to murder charges, his maximum sentence would have been 15 years.

Roberts contended in the Federal proceeding that the 40-year sentence imposed on the simple assault convictions was cruel and unusual. The District Court applied the four factors set forth in Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), and one more relied on in Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), concluding, as to each, that (1) because the Maryland legislature had established 15 years as the maximum sentence for assault with intent to murder — a much more serious offense than simple assault — the imposition of 20 years on the simple assault charge was, in effect, a circumvention of the legislative judgment; (2) it could discern no legislative purpose in not prescribing a maximum penalty for simple assault; (3) there being no maximum, it was not possible to compare the Maryland situation with that in other States; (4) 20 years was a relatively long sentence in comparison with punishments authorized for comparable crimes in Maryland; and (5) because it was unable to find any other reported instance of a 20-year sentence being meted out for simple assault, this was “rare and severe.” Upon those findings, it concluded that such a sentence, in light of the lesser maximum for assault with intent to murder, was cruel and unusual, and therefore unconstitutional.

The Fourth Circuit Court of Appeals affirmed for the reasons set forth by the District Court, and also because “[wjhen, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment----” 544 F.2d at 170.

We note first, for appellant’s edification, that even if these Federal decisions were applicable here, they would require no more than a remand for resentencing within the 10-year maximum for robbery. They would not affect the convictions. See 544 F.2d at 170.

More significant, however, is the fact that, in arguing that we adopt and apply the reasoning (and conclusion) of the Federal decision, appellant overlooks the fact that the Maryland Court of Appeals reached an exactly opposite result in the same case. See Roberts v. Warden, 242 Md. 459 (1966), cert. den. 385 U.S. 876. That decision has never been overruled by the Court of Appeals, or by the Supreme Court; and it therefore remains binding on this Court, to the exclusion of the contrary Federal decisions. See Brown v. State, 38 Md. App. 192 (1977).

Quite apart from that, we perceive a subtle, but nonetheless significant, distinction between the Roberts situation and that sub judice. In Roberts, the defendant had actually been charged with the greater inclusive offense. The maximum possible exposure was clear and measurable throughout the case and at the time of sentence. Such exposure is not so clear and measurable when the heavier charge is never brought; nor, in that instance, is the logic applied by the Federal courts quite so compelling.

The State may have all sorts of valid reasons for charging one offense rather than another — a lesser offense rather than a greater. It acts upon the evidence available to it — known to it — at the time; and that evidence may be quite different from what unfolds at trial. The State may decline to charge a more serious offense because, at the time of charging, the evidence only indicates a lesser offense, or suggests circumstances calling for compassion. This is part of the discretion accorded to State’s Attorneys. See Murphy v. Yates, 276 Md. 475 (1975); Brack v. Wells, 184 Md. 86 (1944). At trial, evidence may appear that puts the defendant (his actions and character) in a much different light. Is the judge, in sentencing, to be bound to statutory maxima for every conceivable crime with which the defendant could have been charged based on the evidence actually revealed? If so, we perceive a great deal of confusion, second-guessing, and error.

The Federal decisions in Roberts are not controlling upon us, and the rationale for them is wholly inapplicable to the circumstances here. Appellant’s sentences were lawful ones. This Court, since Roberts, has sustained 20-year sentences for assault. Brown v. State, supra, 38 Md. App. 192; Raley v. State, 32 Md. App. 515 (1976), cert. den. 278 Md. 731, cert. den. 431 U.S. 965 (1977). See also Wilkins v. State, 5 Md. App. 8 (1968); Adair v. State, supra, 231 Md. 255. The twelve-year sentence was not unlawful, nor the eighteen months for larceny.

(1) “Misadvisement” By the Court

At the conclusion of the State’s case, it is fair to say that appellant was in deep trouble. The evidence against him has already been summarized. Four eye witnesses — the victim and three police officers — identified him as one of two men who assaulted David Papilon and stole his wallet containing $38 in cash. The court very quickly denied appellant’s motion for judgment of acquittal.

The court then explained to appellant that the effect of his ruling on the motion was a finding that the State had “met its burden of proof at this juncture” and had established “a prima facie case against you on both charges, which means you now present any evidence you wish to present.” The court advised appellant that he was free to testify or not to testify and to present any other witnesses. Appellant then indicated a lack of understanding about the motion. “What motion?” he asked.

The court explained:

“The motion that counsel has filed for judgment of acquittal to dismiss the charges. I have denied that in finding that there was sufficient evidence for you to need to put on a defense if you wish to do that.
“At least for the purpose of the State, I found that it had met its burden of proof and had put on a prima facie case, which means, that the burden is now shifted from the State to you for the purpose of any defense that you wish. They have proven their case to where it is a point for the jury to make a determination. At this point they have given us, at least in my opinion, enough evidence to say that the prima facie obligation has been met.
“And your choice, if you wish to do it, is to take the witness stand or not to take the witness stand, that is your right. I mean to imply, you have a right to put on any evidence you wish to, or you don’t have to put on any evidence if you don’t wish to.” (Emphasis supplied.)

The record shows that appellant then conferred with his counsel for a few moments, after which he announced his decision to testify.

Stressing the underscored part of the court’s response, he now claims that he was “misadvised” or misled by the court into thinking that he had the burden of producing evidence to rebut the State’s evidence, that no such burden could lawfully be thrust upon him, and that “[t]his comment may well have influenced [his] decision to testify.” Appellant’s brief, p. 9.

His complaint is grounded upon a misapplication of the concepts enunciated in Mullaney v. Wilbur, 421 U.S. 684 (1975). A fair reading of the court’s comment, taken in context, does not suggest that the ultimate burden of persuasion was being shifted. The court was explaining to appellant that if the case went to the jury at that point, there was sufficient evidence to permit a finding of guilt; what was shifted to him was the burden of producing any evidence he cared to produce in defense of the charges. Obviously, the State was not going to produce a defense for him. See Evans v. State, 28 Md. App. 640, 725 (1975), aff'd 278 Md. 197 (1976); Gilbert v. State, 36 Md. App. 196, 200 (1977). Although the court could have been somewhat more careful in its choice of words, we do not believe that it “misadvised” appellant or contravened the requirements of Mullaney.

(3) Instruction to the Jury

The court gave the jury the following instruction, among many others:

“Now, the Court instruct the Jury in this case and it is quite important for you to remember, that if you find from the evidence in this case, that the defendant Mr. Turner, was present at the scene of the crime, and in close proximity, or in concert with the actual perpetrator of the offense for the purpose of assisting, if necessary, or for watching or preventing interference, or for the purpose of encouragement at the time of the commission of the crime then the Jury may find the defendant a principle (sic) to the crime and as such guilty of the crime as charged.
“If you find from the evidence, the defendant was a participant in the alleged assault and larceny, you must find the defendant guilty of the alleged assault and larceny under these charges. That means if you believe that the defendant was at the scene of the crime, with the juvenile, whoever that person might have been, even if the defendant himself did not take the wallet, did not hit the victim in the case and was there for the purpose of assisting, or watching, or acting in concert with him, he is equally as guilty of the charge of larceny and assault as the person he was with, even though he did not actually do the touching, did not actually take the wallet from the person of the victim.” (Emphasis supplied.)

No objection was made to this instruction, but appellant now asks that we review it anyway because it amounted to plain error material to his rights. Maryland Rule 757 h. This instruction, he says, permitted the jury to convict him merely because of his presence at the scene, which, of course, is not permissible. We do not read the instruction that way, and we therefore find no plain error.

(4) Incompetence of Counsel

Appellant indicated no dissatisfaction with his trial counsel until after he was convicted. Only when the court had rejected each of his grounds for a new trial did he suggest that his counsel was incompetent. The court responded to this in a somewhat equivocal fashion. It said:

“I’ll not make a determination on that. That’s not for this court to determine.
“The case was tried and the Court believes that your counsel did a very admirable trial in the case. If you feel differently, that is certainly your right.”

In the same breath, the court seemed to determine that which it said it would not consider. In context, however, we think that the second statement was not intended as a ruling on the merits of appellant’s contention, but more as an afterthought; it appears that the court simply declined to address the issue.

The court was wrong, however, in suggesting (or concluding) that the competence question was not for it to determine. Where it is properly raised as a ground for new trial, the trial court may consider it. Having said that, we hasten to add that, in all events, the granting of a new trial is discretionary with the court. There may be occasions where the incompetence or ineffectiveness of counsel is so blatant and so apparent to the court that a new trial ought to be granted without further delay. In that circumstance, it is clearly within the power and discretion of the trial court to grant such relief. In other cases, the issue may not be so clear. Its resolution may require a full evidentiary hearing. In that event, the court may, in the proper exercise of its discretion, decline to consider the issue, and leave the defendant to his equally adequate post-conviction,remedies.

In this case, we find no abuse of discretion in the court’s declining to consider the issue.

Judgments affirmed; appellant to pay the costs.

      . Roberts was also convicted of three other crimes growing out of the incident, for which he received additional consecutive sentences totalling 14 years. His aggregate sentence was thus 54 years.

      . The Federal court opinions are not clear on this. It would seem that there were two charges of assault with intent to murder, each carrying a maximum penalty of 15 years. See Roberts v. Warden, 206 Md. 246 (1955). The Federal courts, without discussion, assumed, however, that had the case proceeded on the more serious charges, only one sentence — a maximum of 15 years — could or would have been imposed.

      . It overlooked Adair v. State, 231 Md. 255 (1963).

      . In his role as advocate, the Public Defender may have good reason to argue that the Court of Appeals decision in Roberts should no longer be followed; but he is not at liberty simply to ignore it as though it did not exist.

      . In such a case, there may be a number of serious practical problems in addressing the issue at that point. For one thing, the defendant will usually be without independent counsel; his lawyer will nave become his adversary prior to the termination of their professional relationship. Moreover, to the extent that the complaint involves errors or omissions not apparent from the actual proceedings in court, as in this case, collateral evidence will be needed to resolve it; and that evidence — witnesses and documents — may not then be readily available. Finally, because the granting of a new trial is discretionary with the court, and appellate review of its action is therefore quite limited, a defendant may be running a significant risk in litigating the issue in that type of proceeding. All of these are relevant matters for the court to consider in deciding whether to address the incompetence issue m connection with a motion for new trial.


author: Moore, J.,

text:
    JULIE LITTLE et al. v. UNION TRUST COMPANY OF MARYLAND, Personal Representative of the Estate of Sidney H. Tinley, Jr. et al.
    [No. 524,
    September Term, 1979.]

      Decided April 9, 1980.

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

      Alan Hilliard Legum, with whom were Paula Peters and Legum, Cochran, Chartrand & Wyatt, P.A. on the brief, for appellants.

      Robert J. Carson, with whom were Ronald G. Dawson and Smith, Somerville & Case on the brief, for appellee Union Trust Company of Maryland. Joseph M. Fairbanks, with whom were Weinberg & Green on the brief, for appellee Joseph M. Schwartz. Robert L. Davis, with whom were L. Dale Burgmeier and Goldsborough, Franch & Collett on the brief, for appellee Maryland Management Corporation.
   Moore, J.,

delivered the opinion of the Court.

The appellants in this case are tenants of Ken Marr Apartments, in Annapolis, a low-income housing project financed under the National Housing Act, 12 U.S.C., § 1715 (1) (d) (3) (Supp. II 1978). They instituted a class action in the Circuit Court for Anne Arundel County against a general partnership which originally owned the apartments and a corporation which operated and managed them. The gravamen of the declaration was that the owners and managing agent failed to maintain the housing project in "good repair and condition” and that the premises were "unsafe, unsanitary and otherwise unfit for human habitation.” The lower court sustained defendants’ demurrer to a second amended declaration without leave to amend. We find no error and affirm.

I

According to the second amended declaration, Ken Marr was owned prior to July 29, 1975 by defendants Sidney H. Tinley, Jr., and Joseph M. Schwartz, as partners. Mr. Tinley died subsequent to the filing of the action and Union Trust Company of Maryland, as personal representative of his estate, was substituted.

On June 17,1970, the owners entered into a "Regulatory Agreement” with the Secretary of Housing and Urban Development (HUD) under § 221 (d) (3) of the National Housing Act, 12 U.S.C. § 1715 (1) (d) (3) (Supp. II 1978). Paragraph 7 of the Agreement provided in part:

"Owners shall maintain the mortgaged premises, accommodations and the grounds and equipment appurtenant thereto, in good repair and condition.”

In Count I of the second amended declaration it was alleged that the plaintiffs were third-party beneficiaries of the above agreement and that the "owner defendants” had breached it by failing to keep the premises, accommodations and grounds in good repair and condition. Specific deficiencies were alleged to include the following:

a. sewer back-ups

b. drainage problems

c. holes in the roofs

d. broken water pipes

e. flooding

f. electrical transformer surrounded by pool of water

g. dilapidated roofs

h. dangerously exposed electrical wiring

i. inadequate electrical wiring

j. lack of adequate plumbing facilities

k. lack of adequate heating facilities

l. improperly fitting doors and windows

m. lack of adequate garbage and refuse storage facilities

n. leaking water line in parking lot

o. downspouting and rain gutters either missing or nonfunctional.

The tenants were not, of course, parties to the Regulatory Agreement. Our study of that document reveals, furthermore, that they are nowhere referenced. Paragraph 7, above quoted, is silent as to them, as is paragraph 14 which provides:

"This instrument shall bind, and the benefíts shall inure to, the respective Owners, their heirs, legal representatives, executors, administrators, successors in office or interest, and assigns, and to the Commissioner and his successors so long as the contract of mortgage insurance continues in effect; and during such further time as the Commissioner shall be the owner, holder, or reinsurer of the mortgage, or obligated to reinsure the mortgage.” (Emphasis added.)

We deem it abundantly clear that the tenants are, at most, incidental beneficiaries, and it is well settled under Maryland law that an incidental beneficiary of a contract has no cause of action against either the promisor or the promisee. Weems v. Nanticoke Homes, Inc., 37 Md. App. 544, 553, 378 A.2d 190, 195 (1977). It is not sufficient to show that a party may derive some incidental benefit from a contract. Id. The rights of a third party are dependent upon a showing that it was the intention of the promisee to bestow a direct benefit upon the third party and that "such intent stemmed from the promisee’s status as a debtor of the third party, or from donative motives.” Id. at 556, 378 A.2d at 197. "In determining the intention of the parties, the language of the instrument is the primary source for the determination.” Shillman v. Hobstetter, 249 Md. 678, 688, 241 A.2d 570, 576 (1968).

Federal courts have considered the issue precisely as it has been advanced by the appellants under the HUD Regulatory Agreement in this case and have reached the same conclusion — that the tenants are only incidental beneficiaries. Thus, in the recent case of Falzarano v. United States, 607 F.2d 506, 511 (1st Cir. 1979), the opinion states:

"Plaintiffs allege that they are entitled to recover on the grounds that they are third party beneficiaries of the regulatory agreement between HUD and the landlords. This theory has been raised and rejected before.” (CRations omitted.)
... Our inquiry must be whether plaintiffs were intended beneficiaries únder the regulatory agreement, as merely incidental beneficiaries cannot sue to enforce the contract. Restatement of Contracts § 145; 4 Corbin on Contracts §§ 774,775, 776, 779C (1951).The regulatory agreements at issue here do not disclose an intent to benefít the tenants, except as they might be incidental benefíciaries; nor can the tenants qualify as either creditor or donor benefíciaries. ” (Emphasis added.)

We find that the court below correctly held that the Regulatory Agreement under the National Housing Act conferred no cause of action upon the tenants. We are not unsympathetic to their claims. It is plain, however, that the purpose of the Act and the Regulatory Agreement was to protect the United States Government as insurer of the mortgages and that any benefit to the tenants was incidental and did not confer upon them the status of third-party beneficiaries.

II

In Count II of the Second Amended Declaration, appellants have attempted an incursion into the "impenetrable jungle” of the law of nuisance. W. Prosser, Law of Torts 571 (4th ed. 1971). The allegations of fact contained in Count I were incorporated in the second count by reference, and the appellants went on to allege that "the deficiencies and conditions” set forth in Count I were a "public nuisance within the definition of the Annapolis City Code, FHA minimum property standards and the HUD Regulatory Agreement;” and also that as tenants of the premises, they suffered special damages, "different in kind and degree from that suffered from said nuisance by the general public.” Compensatory and punitive damages were prayed.

Appellants’ brief claims that the cause of action for nuisance is based on the common law, apparently a withdrawal from the position taken in their declaration that the conditions alleged were "a public nuisance” within the meaning of the Annapolis City Code, the FHA standards, and the Agreement. We observe in this connection that there is no allegation and no apparent contention that any of the legislative enactments specifically declared the alleged conditions "nuisances;” and even if the appellees were in violation of the Annapolis housing code, this would not necessarily constitute a nuisance. Where an act or use does not constitute a nuisance per se, it does not become a nuisance by violation of a building code or housing ordinance. Cook v. Normac Corp., 176 Md. 394, 4 A.2d 747 (1939).

We think the short answer, at all events, to appellants’ contentions is that no "public nuisance” has been alleged. In Prosser, supra, the author speaks of the meaning of public nuisance in the following language:

"No better definition of a public nuisance has been suggested than that of an act or omission 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.’ The term comprehends a miscellaneous and diversiñed group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public. It includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, bullfights, unlicensed prize fights, or public profanity; with the publice [sic] peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.
To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several. ”

Prosser, Law of Torts 583 (4th ed. 1971) (citations omitted) (emphasis added).

Contrary to appellants’ position in their brief, there is no support under Maryland law, nor case law elsewhere, for the proposition that improper maintenance of rental premises, in the manner alleged in the declaration in this case, constitutes a public nuisance, as thus defined. The case of Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943), upon which appellants rely, is clearly not supportive of their argument. In Burley, the municipal authorities of the City of Annapolis, under an assertion of power to suppress nuisances, revoked the required license of the appellant to operate billiard tables, doing so on the ground that appellant had been found guilty of operating a gambling house on the premises. On an appeal from an order dismissing the former licensee’s petition for a mandamus to compel the return of the license, the Court of Appeals defined public nuisance in much the same manner as Prosser, supra, and concluded that appellant’s place of amusement did not fall within the definition.

The Court stated:

"To act under its nuisance powers in such cases the city of Annapolis must first prescribe by general ordinance what are nuisances, and make provision for their removal. Here we have, however, no ordinance, no general declaration of what is a nuisance, or what becomes a nuisance and when. We do not even have the city authorities determining that this particular place is a nuisance. We have them taking away the appellant’s license to conduct a lawful business, and leaving him in the possession of the premises where the unlawful gambling was once conducted. No attempt is made to close the premises for use by the appellant for other purposes. It is apparent that the city was not acting under any powers of preventing nuisances which it had under its charter.”

Burley v. City of Annapolis, supra, 182 Md. at 313, 34 A.2d at 606.

We also observe that the appellants cannot rely on the public access to the common areas to establish a public nuisance as maintained in their brief, since the declaration contains no reference to any such common areas nor are there any allegations concerning the public right of "access.”

Appellant’s position here is reminiscent of attempts by tenants to proceed against a landlord for personal injuries based on a nuisance theory; such efforts have been repulsed by the Court of Appeals. Instead, the tenant must proceed by way of traditional negligence theory, as the Court ruled in State v. Feldstein, 207 Md. 20, 35, 113 A.2d 100 (1955):

"We have found no Maryland case in which recovery has been allowed by a tenant against a landlord on the theory of nuisance in an allegation of injury like that in the fourth counts of the declarations and we see no reason to extend the definition of nuisance. In cases like the instant ones the plaintiff must recover, if at all, on the theory of negligence.”

Put simply, a "nuisance exists because of a violation of an absolute duty so that it does not rest on the degree of care used...Sherwood Brothers, Inc. v. Eckard, 204 Md. 485, 493, 105 A.2d 207 (1954). Appellants’ grasp for a nuisance theory against a landlord can be no more availing here than in the decided cases involving personal injuries. See, e.g., Maenner v. Carroll, 46 Md. 193 (1877); Smith v. Walsh, 92 Md. 518, 48 A. 92 (1901); Sherwood Brothers, Inc. v. Eckard, supra, 204 Md. 485, 105 A.2d 207 (1954); State v. Feldstein, supra, 207 Md. 20, 113 A.2d 100 (1955).

In sum, we reject the claim that the alleged improper maintenance of individual rental units constitutes a public nuisance. What is, in essence, involved in this appeal is a damages claim for failure to maintain the demised premises. This is the only act or omission charged to the appellees in the declaration. By attempting to assert a cause of action based upon public nuisance, appellants are seeking to overcome settled principles of Maryland law that, in the absence of an express covenant, the landlord is under no duty to keep the premises in repair. Miller v. Howard, 206 Md. 148, 155, 110 A.2d 683, 685-86 (1955); and there is no allegation that the landlords in this case made any such covenant.

It is accordingly our conclusion that the demurrers to the second amended declaration were properly sustained without leave to amend.

Order affirmed; appellants to pay the costs.

      . We are told that the form of lease which the tenants filed in reply to a demand for production of written instruments shows that the lease executed by the tenants in this case expressly placed the duty of repair on the tenant, not the landlord.


author: Thompson, J.,

text:
    ANNE ARUNDEL COUNTY, MARYLAND v. ROBERT LITZ et ux.
    [No. 609,
    September Term, 1979.]

      Decided April 9, 1980.

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

      John M. Court, Assistant County Solicitor, with whom was Richard Lazer Hillman, County Solicitor, on the brief, for appellant.

      Vincent A. Mulieri for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Anne Arundel County, the appellant, complains on a number of grounds hereinafter set out, that Judge Raymond G. Thieme, Jr., the chancellor, committed error in granting an injunction restraining it from any further pollution of the lake owned by Robert Litz and wife, the appellees. The appellees also appeal complaining as to the form of the injunction and the failure to award damages.

I Facts

The appellees acquired the subject property in Lakeland, near Sevema Park, Maryland on June 18,1959 by deed from Bernard J. Lee, Jr. and Rosalie W. Lee, his wife. The property consisted of approximately 15.1 acres, including a spring fed lake of some 3 acres. On June 27, 1962, the appellees conveyed 8.685 acres of the land to Lake Forest, Incorporated, together with the right to use the lake. The land so conveyed was developed into a subdivision of lakefront homes, known as Lake Forest. As development on the north side of Benfield Road increased drainage problems developed on Benfield Road, so in September of 1964, Anne Arundel County, the appellant, purchased an easement from Raymond D. Kittinger and Ruth Kittinger, his wife, to construct and maintain storm water facilities through the Kittinger property from Benfield Road to the head of a ravine, which leads to the lake. The appellant installed an 18" drainage pipe in said easement to drain water into the lake.

The appellees and the Lake Forest Community Association became concerned in 1968 about erosion and potential damages to the lake caused by the collection of surface water through the 18" pipe. The appellees and the Association had many discussions and meetings with appellant’s representatives over the issue. In late 1969 or early 1970, Mr. Litz learned the appellant planned to improve Benfield Road and also make the improvements in the easement across the Kittinger land to the lake. Mr. Litz voiced his concern, and as a result, the appellant directed Messick and Associates, its consulting engineers on Project 761-R, to study the problem. Messick produced the study known as the "Kittinger Storm Drain Outflow Study”, dated August 1970, which stated that a closed system would alleviate the appellant from any responsibility regarding siltation of the existing lake. Messick, nonetheless, recommended against changing its original design and the appellant agreed.

The project known as 761-R relocated and widened Benfield Road and changed the drainage pipes in the area. To prepare for the construction of the new drainage system called for in the plans, the appellant purchased an additional easement from the Kittingers. This second easement began at the end of the first easement and extended to the lake. The 18" pipe was replaced by a 36" pipe and the pipe system in the roadway was upgraded to accommodate increased amounts of surface water generated by surrounding development and the widening of the roadway. In addition, concrete baffles were constructed in front of the 36" pipe in an attempt to slow the velocity of the water exiting the pipe. A series of three check dams was also installed in an attempt to further slow velocity and trap sediment. Installation of the 36" pipe and improvements in the said easement were started on September 16, 1970 and completed on or about November 1, 1971.

On August 31, 1971, the Lake Forest Community Association filed suit against Anne Arundel County, Maryland, for injunctive relief and damages. When the suit by the Association did not proceed, the appellees filed this suit on February 6, 1974. They sent notice to the County pursuant to Article 57, Section 18 of the Maryland Code on January 31, 1974, the same being received by the County Council on February 4, 1974.

II Parties

The appellant first contends that necessary parties were omitted from this suit in which appellees seek an injunction preventing the appellant from collecting unreasonable amounts of surface water and channelizing it onto the appellees’ property as well as damages from prior acts. The claimed necessary parties were the Soil Conservation Service, the Department of Natural Resources, and the other property owners in the watershed. The chancellor was not impressed with appellant’s argument nor are we. The allegations and the evidence showed that the appellant was the only party who had channelized the water and caused it to damage the appellees’ property. Although other property owners may be contributing to the run-off, there is no allegation nor evidence to suggest that they were anyway involved in the unreasonable collection of surface water or channelization of the water over the appellees’ property. It is up to the appellant to secure whatever permits from public bodies that may be necessary to correct its prior improper actions.

Ill Appellant’s Right to Use the Lake

The appellant contends it has the right to use the lake in any manner it sees fit by virtue of a quit claim deed from Raymond D. Kittinger and Ruth W. Kittinger. This contention stands or falls by virtue of the terms of a conveyance to the Kittingers from Frances C. Perkins dated October 13, 1943. That deed conveyed "the right to use the waters of the lake ... solely and only to the said parties of the second part, and their heirs ....” The County argues that the word "heirs” is a word of limitation indicating the grant, in fee simple, of a perpetual, transferable, exclusive easement in the lake. The appellees contend that "heirs” is a word of purchase and that a non-exclusive easement was granted only to the Kittingers and their heirs.

The word "heirs” has been given a technical legal meaning as a word of limitation. When the word is used, it is presumed to be a word of limitation unless it is shown that it was used to designate particular persons. Lobe v. Goldheim, 153 Md. 248, 250, 138 A. 5 (1927). Gardner v. Gardner, 25 Md. App. 638, 335 A.2d 157, cert. denied, 275 Md. 748 (1975), quoting 26 C.J.S. Deeds § 124 (1956), said:

"The term 'heirs’ is a technical term, clothed in the law of real property with a special significance. It may, however, be used in a deed as a word of limitation or as a word of purchase, according to the grantor’s intent, which is to be determined from an examination of the entire instrument. When used technically the term 'heirs’ is one of limitation, and unless an intention to the contrary appears, it will be presumed to have been used in its technical sense as a word of limitation.” Id. at 644.

In determining the intent of the grantor, the whole instrument is to be considered in light of the facts and circumstances surrounding the transaction. Green v. Eldridge, 230 Md. 441, 447, 187 A.2d 674 (1963).

Examining the instrument as a whole reveals that the word "heirs” is used in several other places. With the exception of paragraph "B” the word "heirs” is used in conjunction with the word "assigns”. In two places, "heirs and assigns” is followed closely by "in fee simple”. The chancellor disposed of this contention on this basis as well as on other grounds, with all of which we entirely agree. A portion of the chancellor’s opinion follows:

"The Court concludes from this that the deed was very carefully drafted by someone who knew the significance of these words. In those places where a description of the interest conveyed was appropriate, the granting clause and the habenden clause, the draftsman took great pain to make it perfectly clear that a fee simple was intended. In paragraph 'B’ 'heirs’ seems to be used in an entirely different way. In the same sentence as the grant to the Kittingers, '... and their heirs’, Frances Perkins secures the right to consent to a transfer of a portion of the property to herself 'or her heirs’ for so long as she 'or her heirs’ owns any portion of the tract. The word 'heirs’ in regard to Frances Perkins could not have been intended to be used in the technical sense as words of limitation because no conveyance was being made to her. For the sake of consistency within the same sentence, therefore, it would seem that 'heirs’ in regard to the Kittingers is a word of purchase. This result is logical if the words 'solely and only’ are read to limit the class of grantees rather than designate the interest passed.
"The facts and circumstances surrounding the transaction also lead to the conclusion that the intention of the grantor was to convey a non-exclusive easement to a limited class of grantees. At the time of the conveyance to the Kittingers, Frances Perkins still owned the remainder of the original tract including the bed of the lake. It seems incongruous for her to retain the bed of the lake for herself yet convey away the exclusive right to use the lake making her fee in the lake worthless. Not being able to assure the right to use the lake would certainly lessen the value of the remaining portions of the tract that she later intended to sell. The second part of the clause granting the easement shows a concern on the part of Frances Perkins as to who was to occupy or own the land near the lake as long as she or her heirs owned any portion of the tract. It appears inconsistent with this concern to convey a fully transferable interest in this land to other parties. To read the deed in such a way would be to say that in the same sentence, she conveyed away all rights to choose the parties to use the lake and yet kept the right to approve the parties living on the lake. Use of the lake is also mentioned in the description of the property following the language of fee simple grant. However, this is a portion of the description of the 'two lots of ground’ rather than the fee simple grant of an easement.
"For the reasons stated above, the Court finds that the easement granted was not transferable to parties other than heirs of the Kittingers. However, there is another reason which defeats the County’s claim of an easement to use the lake. The Kittingers’ interest consisted of an easement appurtenant. An easement appurtenant is one which benefits a particular parcel of land. Greenwalt v. McCardell, 178 Md. 132, [12 A.2d 522] (1940); 3 Powell, Real Property, § 418 (1978). While an easement appurtenant is an incident of, and passes with, possession of the dominant estate, there is nothing to prevent a grantor from providing that the easement will not pass to the transferee of the dominant estate. Restatement of Property, comment b to § 487. Even if it were found that the easement was transferable to the grantees of the Kittingers, the County’s position would not be improved. The Kittingers could not convey their easement separate from the land. An easement appurtenant is annexed to the possession of the dominant estate and cannot be severed from it. 3 Powell, Real Property, § 418. The County’s interest in the Kittinger land consists of an easement for a drainage course and an easement is a nonpossessory interest.
"Even if it were found that the County had the easement it claims, the use being made of it is clearly excessive. The owner of the dominant estate is entitled to use the easement only in the manner contemplated by the grant. Millson v. Laughlin, 217 Md. 576, 585 [142 A.2d 810] (1958). The grant is for the use of the waters of the lake. There are several possible uses of the waters of a lake but dumping silt onto the lake bottom is not one of them. An easement is a right of use and cannot be construed to permit such destruction of the underlying fee of the servient estate as is shown by the evidence. Also, the County has channeled runoff from a large adjacent area into the lake. An easement appurtenant cannot be used to benefit land other than the dominant estate. Buckler v. Davis Sand and Gravel Corp., 221 Md. 532, [158 A.2d 319] (1960).”

IV Appellees’ Title

Under this heading, appellant contends the appellees, the Litzes, failed to establish their title to the bed of the lake. The chancellor found otherwise and we agree. Another portion of the chancellor’s opinion follows:

"The County has questioned the standing of the Plaintiffs to bring this action by attacking the validity of their title....
"The problem in the Litz chain of title stems from an ambiguity in the 1950 deed from James J. Perkins to Eloise Garrison. The calls at issue read as follows:
'. .. thence continuing the same course, North 85 degrees 12 minutes East, and passing through a blazed Oak Tree, 331 feet, more or less, to a point at the head of a lake, thence with the third line of a deed from Frances Perkins to Raymond Kittinger, dated October 15, 1943 and recorded among the said Land Records in Liber J.H.H. 293, folio 131, along approximately the West edge of said lake, South 34 degrees 03 minutes East, 791 feet, more or less, to a pipe set at the edge and at the Southeast comer of said lake.’
"The Kittinger line mns along the east edge of the lake (Exhibit 1G) thus the Garrison boundary could not have run both with the Kittinger line and with the west edge of the lake. The Court must determine from the evidence presented which of these two designations prevails. There are established rules of preference as to conflicting calls yet these are only guides to determining the intention of the parties. Dundalk Holding Co. v. Easter, 195 Md. 488, 495, [73 A.2d 877] (1950). The description given calls first to an existing monument, the Kittinger line. Calls to monuments, natural or artificial prevail over courses and distances and the line of an adjacent tract, if known, can be a monument. Dundalk Holding Co. v. Easter, supra. The Court determines that giving preference to the call to the Kittinger line is in accord with the intent of the parties to this instrument. In determining the intent, the whole instrument is to be considered in light of all the facts and circumstances of the transaction. Green v. Eldridge, [supra]. The remainder of the description of that boundary calls to South 34 degrees 03 minutes East. This is the approximate direction of the East shoreline of the lake and the Kittinger line but is far from the direction of the West shoreline. In addition, the Perkins family eventually conveyed all of the land around the lake (Watson deed, Exhibit 1H and Wagner deed Exhibit 1J). None of these deeds convey the bed of the lake. To construe this boundary as running along the west edge of the lake would leave the title to the bed of the lake in James Perkins with no reservation of access, a result which was surely not intended. The Garrison property was also the logical parcel to include the lake as it was the parcel upon which the Perkins family actually lived. From the examination of the entire instrument and the facts and circumstances surrounding the transaction, the Court concludes that it was the intention of the parties that the boundary of the Garrison property (now the Litz parcel) was intended to be the east edge of the lake and that the designation of the west edge was an error. Therefore, the Plaintiffs have both color of title and sufficient standing to bring this action.”

IV Evidence

Appellant argues that because its experts testified the efforts made by the County to correct the drainage problem were the optimum that the state of the art permitted, the chancellor was in error in finding to the contrary.

The appellant, by its construction of the project known as 761-R is collecting and channelizing and thus concentrating and artifically increasing the volume of surface water through the pipe system and discharging same into its easement where it carries silt into appellees’ lake. Aerial photographs of the lake taken in April of 1970 do not reveal the presence of the sandbar at the end of the appellees’ easement, at the northern end of the lake, while such photographs taken in 1977 show clearly the presence of the sandbar positioned exactly at the end of appellees’ easement. The sandbar grew from 2,480 square feet in 1975 to 6,600 square feet in 1978. Where the lake was, in 1960, 15 feet deep in the center, it is now 9.3 feet deep. See Baer v. Board of County Commissioners, 255 Md. 163, 257 A.2d 201 (1969) in which the municipality extended a drainage pipe to the rear of Baers’ lot where it discharged. There the Court stated:

"The Baers are obviously correct when they say that this concentrated water on their lot which they might never have been required to take had the pipes not been installed. The fact that the direction of flow may have been left undisturbed is not the controlling circumstance; it is the fact that the County canalized the water in pipes which were by their very nature impervious, so that the Baers were deprived of the natural process of absorption and diversion which might have taken place had the water flowed across the surface of Beyard’s lot.” Id. at 170.

We see no error in the chancellor’s findings on this issue.

V Form of Injunction

The appellees complain because the injunction did not require the appellant to remove the pipes or to extend the pipes to a suitable place of discharge, contending that the appellant could satisfy the order simply with cosmetic changes, citing O.F.C. Corporation v. Turner, 228 Md. 105, 179 A.2d 366 (1962), Md. Trust Co. v. Tulip Realty, 220 Md. 399, 153 A.2d 275 (1959). We are impressed by the chancellor’s statement that he believed it was not his function to require any particular course of action by the appellant but that the handling of the problem should be left to its discretion so long as the end result was accomplished. The granting or denying of an injunction is always within the discretion of the chancellor. State Department of Health & Mental Hygiene v. Baltimore County, 281 Md. 548, 554, 383 A.2d 51, 55 (1977), Anne Arundel Co. v. Whitehall Venture, 39 Md. App. 197, 200, 384 A.2d 780, 783 (1978). This is also true with reference to the form in which the decree takes. On this issue, although we are not sure whether the County’s suggested action will remedy the problem, we will defer to the chancellor’s discretion.

VI Damages

The trial judge refused to grant the appellees damages because of their failure to give proper notice pursuant to Md. Code, Art. 57, § 18. Appellees argue that the statute does not apply to continuing and continuous invasions of property as were present in this case. Although a cause of action for a continuous injury is not cut off by the limitations period, damages for recovery in cases where there is a continuous invasion have been limited by the statutory period. See Shell Oil Company v. Parker, 265 Md. 631, 291 A.2d 64 (1972); Martin v. Arundel Corp., 216 Md. 184, 140 A.2d 146 (1958); Consolidated Public Utilities Co. of Westminster v. Baile, 152 Md. 371, 136 A. 825 (1927); Commissioners of Aberdeen v. Bradford, 94 Md. 670, 51 A. 614 (1902). Thus, in this case, appellees could only recover for damages occurring 180 days prior to giving notice.

This holding is supported by cases interpreting Art. 57, § 18. The purpose of the notice provision is to have the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time sufficient to ascertain the character and extent of the injury and its responsibility in connection with it. Jackson v. Board of County Commissioners, 233 Md. 164, 168, 195 A.2d 693, 695 (1963). The notice is a condition precedent to the right to maintain the suit. Madore v. Baltimore County, 34 Md. App. 340, 342, 367 A.2d 54, 56 (1976). See also, Cotham v. Board of County Commissioners, 260 Md. 556, 273 A.2d 115 (1971).

The rule that damages may be limited to the notice period under the statute is supported by cases from other jurisdictions. In Thomann v. City of Rochester, 256 N.Y. 165, 176 N.E. 129, 130 (1931), Judge Cardozo, in interpreting a statute which required notice to be given to the municipality within thirty days, stated:

"[The landowner] did not lose the right to some measure of relief by failing to give notice within the term of thirty days. What he lost was the right to include in the relief an award of damages antedating by more than thirty days the presentation of the notice in the statutory form.”

See also, Doran v. Town of Cheektowaga, 54 App. Div. 2d 178, 388 N.Y.S.2d 385 (1976).

Decree affirmed éxcept as to denial of damages.

Case remanded for determination of the amount of damages.

Appellant to pay the costs.

      . Although this statement of fact is challenged by the appellant, it was so found by the chancellor.

      . There is no contention that the lake bed is owned by the State of Maryland.

      . The report on Project 761-R showed that the problem could have been avoided by extending the pipe into the Severn.

      . The successor to this statute is in Courts and Judicial Proceedings § 5-306. Art. 57, § 18, in effect at the time the suit was filed required that the county be given notice of a claim within 180 days after the injury or damage was sustained. As the damages sustained were continuing in nature, it is not relevant that the pipe was installed in 1971, at which time the notice provision in Art. 57, § 18 was 90 days.