author: Morton, J.,

text:
    ARTHUR D. HALL, III v. PATRICIA R. HALL
    [No. 978,
    September Term, 1975.]

      Decided July 27, 1976.

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

      Wallace Dann, with whom were Bregel & Bregel, Chartered, on the brief, for appellant.

      Donald F. Rogers, with whom were Lichter, Coleman & Rogers on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, Arthur D. Hall, III, has appealed from decrees issued by Judge J. Albert Roney, Jr., after hearings held in the Circuit Court for Cecil County, wherein the appellant’s bill of complaint for an annulment of his marriage to the appellee, Patricia R. Hall, was dismissed; the appellee was granted a divorce a vinculo matrimonii; the ownership of properties claimed by the parties was determined; and the appellee was awarded permanent alimony in the amount of $115 per week.

The appellant raises ten separate issues in this appeal and since his attack upon the decrees is largely grounded upon the asserted insufficiency of the evidence to support the chancellor’s action, we shall set forth in full Judge Roney’s findings of fact and conclusions of law:

“COURT’S OPINION
At 1:48 p.m., on June 28, 1974, Arthur D. Hall filed his Bill of Complaint for an annulment of his marriage to Patricia R. Hall, and at 3:36 p.m., on the same date, Patricia filed her Bill of Complaint against her husband Arthur for a divorce a vinculo. On April 3, 1975, Arthur filed an Amended'Bill of Complaint. The cases were tried together with consent of counsel and the Court has treated them more in the nature of a Bill and Cross-Bill than as separate cases. For the purpose of simplicity the parties will be referred to herein as Arthur and Patricia.
Arthur’s Bill of Complaint for an annulment and Patricia’s Bill for divorce are both based on the fact that at the time of their marriage on June 13,1970, Arthur was still lawfully married to his first wife Helen and therefore his marriage to Patricia was bigamous. It was agreed and stipulated by the parties, however, that there was no fraud or deception on the part of either party in entering into their marriage, as both were unaware that the divorce ostensibly obtained by Arthur’s first wife Helen on October 14, 1968, in the Circuit Court for St. Clair County, Pell City, Alabama, was invalid. In addition to asking for an annulment of his marriage Arthur prays the Court to declare all property, real and personal, titled in both their names, either as joint tenants or tenants by the entireties, as his sole property and to account for certain moneys to Arthur D. Hall, Inc. Patricia seeks, in addition to a divorce a vinculo, alimony, attorney’s fees, and a determination of the ownership of the jointly held personal property.
It is imminently clear that this marriage must be dissolved because it was bigamous at its inception. The question is how it should be done — by annulment or divorce.
On September 7, 1947, Arthur married one Helen S. Hall, and they thereafter lived together as man and wife until August 1966 when they mutually agreed to live separate and apart. In December 1966 Arthur met Patricia who was living separate and apart from her husband. Each was well aware of the marital status of the other and of the proceedings by their respective spouses to obtain a divorce. On December 1, 1967, Patricia’s husband, James W. Flosdorf, was granted an absolute divorce from her by the Court of Common Pleas for Franklin County, Pennsylvania. On October 14, 1968, Arthur’s wife Helen ostensibly obtained, an absolute divorce from him in the Circuit Court for St. Clair County, Alabama, a copy of which decree was received by Arthur from one John Ike Griffith, Attorney, Birmingham, Alabama. Relying in good faith upon the authenticity and validity of the Alabama divorce decree, Arthur and Patricia were married on June 13, 1970, in Bucks County, Pennsylvania. After living for awhile at Washington Crossings, Pennsylvania, they purchased a 220-acre farm near Port Deposit in Cecil County, Maryland, in December, 1971, for which they received a deed, made to them as tenants by the entireties, dated April 7, 1972. The farm then became not only their residence but the principal office of A. D. Hall, Inc., an engineer and consulting business formed by Arthur and Patricia as incorporators and sole stockholders in May 1971. In a telephone conversation with his first wife Helen in August 1973, to which Patricia was listening in, Arthur and Patricia learned for the first time from a remark that Helen made that there was a possibility that the Alabama divorce was invalid. Arthur instigated an immediate investigation into the matter and the invalidity of the Alabama divorce was confirmed by a certificate of the Register of the Circuit Court for St. Clair County, Alabama, in Equity, dated September 26, 1973, which was forwarded to Arthur by his attorney on October 2, 1973. Arthur immediately filed suit on October 10,1973, against Helen S. Hail in the Circuit Court for Cecil County, Maryland, for a divorce a vinculo on the ground of separation of the parties since August 1966, and he was awarded an absolute divorce by decree of the Court dated December 21,1973. Except for three occasions when Patricia left Arthur for a brief period of time (not more than a week or ten days at the longest), the parties lived together as man and wife until May 4, 1974, when Patricia left the domicile and they have lived separate and apart ever since.
The fact that Arthur married Patricia while his marriage to his first wife was still in effect makes the marriage void ab initio. The Court therefore can either annul the marriage or dissolve it by granting a divorce. Article 16, Sec. 24. Clayton v. Clayton, 231 Md. 74.
It is conceded that the parties entered into the marriage in good faith. Thereafter they pursued a rather normal marital relationship for almost four years during which time they sincerely believed they were legally married. An annulment of the marriage fails to recognize any marital relationship between the parties, while a divorce, on the other hand, does recognize the marital relationship. It can hardly be denied that a normal marital relationship did exist between the parties to this cause, even after Arthur obtained a divorce from his first wife in December 1973. Under such circumstances this Court believes that the dissolution of the marriage by divorce is more appropriate than by declaring it annulled.
In his amended Bill of Complaint Arthur alleges, in addition to the marriage being bigamous, that Patricia perpetrated a fraud upon him in that she was guilty of adulterous conduct while married to her former husband which he did not discover until after he married her, and that had he known of her prior adulterous conduct he would not have married her. The Court is not so convinced. He was fully aware of the pending divorce action of Patricia and her former husband in which the husband was the complaining party. He accompanied her on visits to her attorney and they discussed the divorce action on several occasions. He certainly must have been aware of all the details of the divorce. Furthermore, it was admitted that he and Patricia carried on an intimate relationship while both were still married. If she would carry on an adulterous relationship with him, it certainly should have come as no surprise and shock to him to learn that she may have had an adulterous relationship with others. The court is just not persuaded that he would not have married her had he known of her prior adulterous conduct. The burden is on him to prove his allegation of fraud to entitle him to an annulment of his marriage, and he has failed to do so.
The Court will therefore deny the prayer in Arthur Hall’s Amended Bill of Complaint for an annulment of the marriage and grant the prayer of Patricia Hall for a divorce a vinculo.
The Court next considers Patricia’s prayer for alimony. In the Clayton case, supra, it was established that alimony could be awarded incident to a divorce granted on the ground that the husband had another wife living at the time of the marriage. Arthur challenges her right to alimony on two grounds, namely, that she is the party at fault in deserting her husband, and secondly, that alimony may not be awarded in cases of divorce based on nonculpatory grounds.
The case of Flanagan v. Flanagan, 270 Md. 335, puts to rest the second argument. The Court stated (page 338) that:
‘We have consistently construed this section (Sec. 3 of Art. 16) when applied in connection with divorces on nonculpatory grounds to permit an allowance of alimony to the wife regardless of who originally initiated the action. * * * Therefore, in any suit for divorce on nonculpatory grounds, dissolution of the marriage permits the court to consider the granting of alimony so long as the question is put in issue by either the original bill or a cross-bill, or by requesting such affirmative relief in an answer.’
Arthur’s argument that Patricia is the party at fault in bringing to an end their marital relationship because she deserted him without just cause or reason is not supported by the facts. The one thing above all others that disrupted this marriage and was directly responsible for it ending in divorce was the shocking revelation that they were and had been living together while not legally married to each other because of the invalidity of the divorce proceedings instituted by his first wife. The other reasons assigned by Patricia for leaving, namely, the alleged sexual advances of Arthur toward her daughter, and his abusive and violent conduct toward her were too remote in time to have been instrumental in causing her to leave when she did.
The discovery of the invalidity of Arthur’s divorce from his first wife directly precipitated the separation. Upon learning of it their relationship was never the same thereafter. It is not surprising that when she learned in February 1974 that Arthur had not revealed to her that he had obtained a divorce from his first wife in December 1973 that she should be extremely upset and have reason to question his intentions of marrying her as he had agreed to do when the divorce proceedings were instituted. Under these circumstances it could hardly be expected that she would continue living with him.
It is conceded that the parties hereto entered into their marriage in good faith and that no fraud can be attributed to either party in entering into the marriage contract. At the time of their marriage both parties undoubtedly looked forward to and expected a long and happily married life together. Their relationship toward each other, working together in carrying on the business, purchasing and maintaining a large and beautiful home, and sharing in the activities of both business and pleasure together indicates a normal marital relationship. There is nothing to indicate that they were not sincerely in love with each other when they married and to all intents and purposes expected their marriage to be a long and happy one. It offered security for Patricia, and not only companionship for Arthur but valuable assistance to him as well in the conduct of his business affairs. While it is difficult to predict what another woman might do under the circumstances, and while it might reasonably be argued that a faithful wife would not leave her bigamous husband if she were truly in love with him, it is difficult to blame Patricia for leaving her husband when she did and under the conditions then existing. Fault is only one of several factors to be considered in properly awarding alimony in a nonculpatory as well as a culpatory divorce. Flanagan v. Flanagan, supra. In this case it is difficult to assign any real or significant fault to either party for their eventual separation. However, the separation may not have occurred had Arthur acted promptly upon obtaining his divorce from his first wife in so informing Patricia and remarrying her as he had promised. This was the direct cause of her leaving and for this he was at fault. Finding it difficult to assign any particular blame or fault on the part of Patricia for the dissolution of the marriage the Court believes that she is entitled to receive alimony, if she is otherwise justified.
As it has often been stated by our courts, ‘alimony is based upon need and is never a punitive measure.’ The factors that the court should consider in arriving at a proper award of alimony were enumerated in Timanus v. Timanus, 178 Md. 640, as follows:
‘It is a general rule that a court, before determining the award of alimony, should consider the maintenance of the wife in accordance with the husband’s duty to support her suitably, together with the husband’s wealth and earning capacity. In addition to the financial circumstances of the parties, the court should also usually consider their station in life, their age and physical condition, ability to work, the length of time they lived together, the circumstances leading up to the separation, the fault which destroyed the home, and their respective responsibilities for the care and support of the children.’
The testimony given in this case would permit the court to consider all the facts aforementioned, except that there is no testimony before the court upon which the court can determine Patricia’s present and future needs. She stated that she is now living with a friend and is using the balance of the money she received from the settlement with her first husband for her subsistence, but she did not testify, and the court has no way of knowing, what her present living expenses amount to, and whether or not they are reasonable. The court should not speculate upon such an important matter. The court will therefore reserve unto Patricia the right to alimony pending a hearing before this court to determine the amount, if any, to be awarded.
The court now turns to the question of the division of the jointly owned property of the parties.
Section 3-603 of Courts & Judicial Proceedings, Annotated Code of Maryland, provides:
‘(a) In general. — A court of equity has jurisdiction in an action for divorce, alimony, or annulment of marriage. The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.
‘(b) Determination or division of personal property. — A court granting a limited or absolute divorce may determine the ownership of personal property, other than chattels real, held, possessed, or claimed by a party to the divorce proceedings, and in accordance with that determination may:
(1) Make a division of personal property between the parties.
(2) Order a sale of personal property and a division of proceeds; or
(3) Make any other disposition of personal property it deems proper.’
Both parties have prayed the court to determine the ownership of the real estate held by the parties as tenants by the entireties. Involved is the 221.74 acre farm located near Port Deposit and an unimproved building lot in Elkton. Under the aforementioned statute the court has no jurisdiction in a divorce proceeding to make that determination, in the absence of proof of fraud by one of the parties in bringing about the marriage. As already stated, there has been a finding by this Court that no fraud was involved here. Where ‘people living together as husband and wife, and in good faith believing themselves to have that status, acquire property by their joint labor and enterprise, take title to the same as tenants by the entireties.’ [] Hutson v. Hutson, 168 Md. 182; Donnelly v. Donnelly, 198 Md. 341. It is well settled that the effect of the granting of a divorce upon real estate held by the parties as tenants by the entireties is to convert their respective interests therein to that of tenants in common. See Wright v. Wright, 2 Md. 429, and Keen vs. Keen, 191 Md. 31.
The personal property held by the parties jointly includes:
Household furnishings at the farm house at Port Deposit, Maryland
1000 shares — Arthur D. Hall, Inc.
100 shares — Singer Co.
100 shares — Syntex
100 shares — Union Oil of California
11 shares — General Instrument
200 shares — Standard Oil of California
Account No. 876-45007, Merrill Lynch, Pierce, Fenner & Smith, Inc. ($25,000)
Trustee Account, proceeds of redemption of $40,000 Treasury Bills
The division of the personal property depends upon the degree of ownership of the respective parties therein. A court of equity, when sitting as a divorce court, may not transfer the property of one spouse to the other or otherwise dispose of it. However, as stated in Abell vs. Abell, 12 Md. App. 99,
‘having found that the personal property was owned equally by the parties, the Chancellor was powerless to do anything more under the terms of Section 29 than to make an equal division between the parties of the jointly owned property or, in the alternative, to order a sale of the property or such part thereof deemed necessary to effectuate an equal division, and to order the proceeds of sale to be equally divided between the parties.’
Arthur contends that their assets hereinbefore listed ‘were purchased with money either owned by Arthur individually prior to his marriage to Patricia, * * * or with money earned entirely by Arthur after their marriage, and set aside for specific purposes, i.e., income taxes, patent expense, payments due first wife, etc., and that he merely put them in joint names to quell Patricia’s fears of his predeceasing her and everything being tied up in his estate,’ and therefore all the assets are his sole property.
The facts do not bear this out. At the time of their marriage in June 1970 Arthur was employed by the SCM Corporation at a yearly salary of $48,000. Under an agreement with his first wife he was required to pay her $660 per month for support and provide a $40,000 educational trust for his children. He had at the time an equity of about $17,000 in a home in Pennsylvania, an airplane which he sold for $7,000, AT&T stock valued at $10,000, an automobile and some cash. Patricia was at the time receiving $200 per month child support from her first husband; she owned a 1968 Chevrolet, SCM stock valued at $1,800, and about $6,500 which she received as a settlement from her first husband. Some months later his employment with SCM was terminated. He and Patricia then-formed the Arthur D. Hall corporation which involved the sale of the expertise of Arthur in the field of tele-communications. Arthur was President and Patricia was Secretary and 1000 shares of stock was issued to each as tenants by the entireties. Each contributed by their joint efforts to the success of the business. According to his 1971 tax return his income for the year was $8,077.87. Compensation paid to Patricia by the corporation that year was $1,700. Corporate tax returns indicate that they each devoted 100 percent of their time to the business of the corporation. The business grew and prospered through their joint efforts until the time of their separation in May 1974. During this time, as the records indicate, she was paid by the corporation for her services. Arthur contends that these payments to her were part of a scheme to make his income appear to be less than it really was so that his first wife could not claim additional alimony. The corporate income tax returns made under oath show payments made to Patricia for her services to the corporation, and this Court accepts them as correct. Arthur can hardly deny what he has sworn to on the income tax returns. During this time they acquired the assets hereinbefore listed with the fruits of their joint endeavor and these were put in their joint names as owners. Patricia sold her SCM stock for $550 and the money received therefrom was pooled with money that Arthur contributed to purchase other stock in their joint names. Throughout their marriage these parties were engaged in activities of mutual interest and benefit to both. Having married in good faith and having a normal marital relationship, it is not unusual or surprising to find them pooling their resources and placing their assets, which they acquired through their joint efforts, in both their names to indicate equal interest and ownership therein. There is no evidence to substantiate Arthur’s allegation that the assets were put in their joint names to quell her fears of his predeceasing her. On the contrary it strongly indicates that by so doing they recognized an equal ownership in the property. The Court therefore finds that the parties contributed equally to the purchase of the several stocks hereinbefore listed, as well as to the account with Merrill Lynch, Pierce, Fenner & Smith, Inc., in the amount of $25,000, and the Trustee Account which represents the redemption of $40,000 Treasury Bills, and therefore each are entitled to a one-half interest therein.
Their household furnishings consist of articles, some of which were supplied by each one originally and some acquired through their joint efforts. There is a complete lack of testimony upon which the court can determine specifically which if any item was acquired solely by one or the other. The court therefore concludes that the household furnishings are jointly owned and unless the parties can agree on a division of the household furnishings between them, the Court will order that they be sold and the net proceeds divided equally between them.
Patricia makes a further claim for an accounting by Arthur of her share in three separate transactions involving money she claims is hers, namely, the proceeds from the payoff of the Schmel mortgage, money in a joint account in the Washington-Lee Savings & Loan Association, and the money in the joint account at Yardley Savings & Loan Association.
In March 1973, the corporation paid to both Patricia and Arthur by check $10,000 as salary, according to Arthur’s testimony, which they pooled and loaned to one Michael Schmel and his wife, secured by a mortgage to both of them as mortgagees on the Schmel property. The mortgage debt was paid off on April 10, 1974, and Arthur deposited the $20,000 in a savings account in the Elkton Banking and Trust Company, being No. 7-04387-9, which he opened in his name alone, on May 10, 1974, just six days after the separation of the parties. As the court has already indicated, the money paid to Patricia by the corporation as evidenced by its records was for services rendered. Arthur may not disclaim her right to it. A court of equity will protect the interest of one whose funds have been converted into a joint bank account after the parties have separated. Jones v. Hamilton, 211 Md. 371. The court finds that half of the money in said savings account in the Elkton Banking and Trust Company belongs to Patricia, and Arthur will be ordered to account to her for it.
As for the Washington-Lee Savings and Loan Association joint savings account, it was opened on April 5, 1973, with the deposit of two checks issued by Arthur D. Hall, Inc., each for $10,000, one to Arthur on March 29,1973, and the other to Patricia on March 30, 1973, and both representing ‘commissions’ paid to them for services rendered. On June 27, 1974, after the separation, Arthur withdrew the entire balance in said account in the amount of $21,213.30, and deposited it in the Arthur D. Hall, Inc., account in the Cecil National Bank on July 5, 1974. This money was never put in Arthur’s personal account. Patricia’s redress, if any, for this money which she claims is against the corporation, not Arthur. This matter is, therefore, not before this court in this case.
Yardley Savings & Loan Association account was originally in Arthur’s name alone. On December 31, 1971-, he opened an account in the amount of $20,000 in the names of ‘Arthur D. Hall or Patricia R. Hall’, and he retained the passbook. On September 4, 1973, Arthur withdrew the $21,630.38 balance in said account and closed it, and deposited same in a savings account in the Cecil National Bank, being Account No. 190877-4, in his name only on May 10, 1974. Patricia, who contributed nothing to this account, contends that Arthur gave her this account as a gift. The burden is on her to prove the gift. The proof is far from convicing. Furthermore, the law on the subject is clear as stated in Brewer v. Bowersox, 92 Md. 567, at page 570, where the Court said:
‘* * * where money belonging to one person and known to belong to him, is deposited by him in his own name and in the name of another, but subject to the order of either, and the depositor retains possession, control and dominion over the pass-book or certificate without the production of which the fund cannot be drawn, he does not part with the ownership of the fund, and the other person becomes merely an agent of the real owner acquiring no interest in the fund at all and ceasing upon the death of the owner to have any authority whatever as agent. And the reason for this is apparent. The owner of the money can by his own act voluntarily part with his ownership of it only by gift, payment or bequest. Such a deposit as has just been named is obviously neither a bequest nor a payment, for it possesses none of the characteristics of either; and it cannot be a gift to the other person mentioned in the bank-book or the certificate, because if the depositor retains the book or the certificate he retains complete dominion over the fund. There can be no perfected gift where the supposed donor reserves a locus poenitientiae, and a locus poenitientiae is always reserved when the alleged donor may at any moment withdraw the fund from bank. * * *’
The Court, therefore, finds that as to the money in the Yardley account Patricia has no right or claim to it.
Finally, Patricia contends that she is entitled to her share (a half interest) in the yearly rental of $2,500 which Arthur has collected as a result of a lease of pasture land on their farm property and which he has heretofore deposited in his personal account. There is no evidence that Patricia ever questioned this arrangement. It was apparently done with her knowledge and acquiescence. She has no standing to claim it now. The rule is well settled that a wife is entitled to one half of the income from property held by the entireties. Wardrop v. Wardrop, 211 Md. 14. However, as the Court pointed out in Colburn v. Colburn, 262 Md. 333, quoting from Grover v. Radcliff, 63 Md. 496:
‘But if such money or other separate property of the wife has been received by the husband, with the knowledge and acquiescence of the wife, without such express promise at the time, no implied assumpsit, either legal or equitable, will arise to support a claim against the husband or his estate. The wife having the jus disponendi of her separate property, if she thinks proper to let her husband have it, or appropriate it, without any express promise or agreement at the time to account for or repay her the amount so received or appropriated, she cannot afterwards set up a claim against the husband upon the footing of a creditor. In such case she is taken to have acquiesced in the appropriation of the fund for the common benefit of herself and husband, or for the benefit of the family.’
The court therefore finds that the money received by Arthur as rental from the pasture land prior to the separation of the parties is his, and Patricia can make no claim to it now. However, he is accountable to her for one-half of any rentals accruing following the granting of a divorce in this case. By converting their interest in said property to that of tenants in common by virtue of this divorce, each remains entitled to a one-half interest in any income from the real estate.
The Court will require Arthur to pay to the attorneys representing his wife in this case a fee of $1,000, which the Court believes to be fair and reasonable considering the great amount of time and effort which they have undoubtedly expended in the preparation and presentation of her case, and at the same time considering the financial position of each of the parties.
The Court accordingly will sign a decree and order:
1) Granting a divorce a vinculo matrimonii to Patricia R. Hall.
2) Reserving unto Patricia R. Hall the right to alimony.
3) Declaring equal ownership of the personal property herein listed and ordering an equal division thereof between them. In the event the parties are unable to reach an amicable agreement with respect to the division of the household furnishings, the Court will order that these items be sold and the net proceeds from such sale be equally divided between the parties.
4) Declaring equal ownership in the savings account in the Elkton Banking and Trust Company, being No. 7-04387-9, and ordering an equal division of same between the parties.
5) Declaring the savings account No. 190877-4 in the Cecil National Bank to be the sole property of Arthur D. Hall.
6) Requiring Arthur D. Hall to pay a counsel fee of $1,000 to Lichter, Coleman & Rogers, Attorneys for Patricia R. Hall.
7) Requiring Arthur D. Hall to pay the Court costs in both cases.
J. Albert Roney, Jr.,
Judge
July 30, 1975”

An appropriate decree was thereafter signed by the chancellor on August 18, 1975. The appellant, Arthur D. Hall, III, filed a petition for rehearing on September 10, 1975, which was denied the same day. At the same time the chancellor conducted a hearing on the question of alimony and concluded that the appellee, Patricia R. Hall, was entitled to receive $115 per week as permanent alimony from the appellant and a decree to that effect was signed on September 25,1975.

It is contended that “the prayer of the appellant for an annulment should have been granted.” He argues that “no overriding principles of justice or equity exist which would require a divorce to be granted rather than the pronouncement of a nullity.” By the same token, we cannot find in the record any “overriding principles of justice or equity” which would compel the chancellor to grant an annulment rather than a divorce. He found as a fact, which is supported by the evidence, that there was no fraud on the part of the appellee which enticed the appellant to enter the marriage and that the appellant was not unaware of the appellee’s prior social background. Appellant, as the chancellor phrased it, simply failed “to prove his allegation of fraud to entitle him to an annulment of his marriage * * * ”

Although appellant was not entitled to an annulment on the ground of fraud, he did, on the other hand, conceivably have grounds for an annulment if we assume, as appellant alleged and the chancellor apparently treated as proved, that his first marriage had not been legally dissolved at the time he entered into the marriage with the appellee. Townsend v. Morgan, 192 Md. 168 (1949); see Strahorn, Void and Voidable Marriages in Maryland and Their Annulment, 2 Md. L. Rev. 211, 225 (1938). Thus, the chancellor, as he recognized, was confronted with a choice of avenues to pursue in dissolving the marriage. As we see it, the chancellor had a certain freedom of choice as to the direction he would take and unless he has abused that discretion, his action will not be set aside on appeal.

In appraising the course of action taken by the chancellor, it must be borne in mind, according to 3 W. Nelson, Divorce and Annulment § 31.05 (2d ed. 1945):

“The law does not favor annulments of marriages, and it has long been a settled judicial policy to annul marriages only under circumstances and for causes clearly warranting such relief. It has been reasoned that more serious consequences, of a social and pecuniary nature, may result from a decree of annulment than from a decree of divorce, and that the vigilance with which the law guards the marital status should accordingly be intensified when an attack is made against its validity from the very beginning.” [Footnotes omitted.]

Moreover, by pursuing the divorce route rather than the annulment route, the chancellor avoided some of the pitfalls inherent in an annulment action. See Strahorn, Fifteen Years of Change in Maryland Marriage and Annulment Law and Domestic Relations Changes, 13 Md. L. Rev. 128, 133-36 (1953). Nelson, supra, at § 31.15 states:

“It has been observed that, as a matter of public policy a court should, at the first opportunity, enter its decree annulling a marriage where one of the parties thereto had a spouse at the time of the marriage. Many decisions, however, evince a judicial reluctance to annul marriages for this cause. According to the trend of present-day authority, if naught appears but that a marriage is bigamous, a court may doubtless declare it to be null and void; but if there are circumstances justifying such action, an annulment may be denied for ‘equitable reasons.’ So an annulment sought because the wife had another husband living has been refused where the impediment was removed either by the death of the first husband or by the procurement of a divorce terminating the first marriage, before suit for annulment was brought by the second husband, who, after such death or divorce and with knowledge of the former undissolved marriage, had continued to live with her for a period of time as her husband.” [Footnotes omitted.]

Here, of course, “the impediment” of the first marriage was removed when the appellant obtained a valid divorce from his first wife in December, 1973, long before he instituted the annulment proceedings.

Looking at the overall picture presented by the conduct and relations of the parties, both prior to and after their purported marriage, we cannot find that the chancellor violated any overriding principles of justice or equity in denying appellant’s petition for annulment and in granting the appellee a divorce a vinculo matrimonii. Otherwise stated, we cannot say, upon reviewing the totality of the circumstances, that there was any abuse of the chancellor’s discretion.

We turn next to the contention that “The appellee was not entitled to an award of alimony either as an incident to an annulment of the marriage or to a divorce.” Having concluded that the chancellor committed no error in denying appellant’s application for an annulment, the only remaining issue in this regard is whether the chancellor erroneously awarded appellee alimony following a finding that she was entitled to a divorce a vinculo matrimonii. We think he did not.

That alimony may be granted following a divorce on the ground that the marriage is a nullity was established in Clayton v. Clayton, 231 Md. 74 (1963). And it is clear that the chancellor in concluding that appellee was entitled to alimony adhered to the guidelines set forth by the Court of Appeals in Flanagan v. Flanagan, 270 Md. 335 (1973), and took into consideration the factors enumerated in the keystone case of Timanus v. Timanus, 178 Md. 640 (1940). He recognized “that fault is one of several factors to be considered in properly awarding alimony in a nonculpatory divorce * * Flanagan v. Flanagan, supra, at 340; and he found the appellee free of fault. On the record before us we cannot quarrel with that conclusion. Thus, we find the contention that appellee was not entitled to alimony as an incident of the divorce to be without merit.

The appellant next contends that “the issue of the ownership of the real estate was not properly before the Court and its ownership should not have been determined in the decree.” Since the decree contains no reference to the ownership of the parties’ real estate, it is clear that the chancellor did not determine the ownership of the real property. It is true that in the course of his opinion the chancellor stated:

“It is well settled that the effect of the granting of a divorce upon real estate held by the parties as tenants by the entireties is to convert their respective interests therein to that of tenants in common.”

This is simply a correct statement of the law. Tucker v. Dudley, 223 Md. 467 (1960). The contention is without merit.

The appellant makes separate contentions (IV — VII) that there was insufficient evidence to support the chancellor’s findings that the household furnishings were jointly owned; that the appellant had made a gift to the appellee of their jointly registered stock holdings; that appellee was entitled to a division of the assets of “the brokerage account”; and that the appellee was entitled to an interest in the Elkton Banking and Trust Company savings account. We have carefully scrutinized the record before us and find that the evidence supports the finding of the chancellor that the appellee sustained her burden of proving ownership of the property. Woodall v. Woodall, 16 Md. App. 17 (1972).

It is next contended that “The refusal to grant the appellant a rehearing denied him a substantial right.” In support of this contention, it is argued that counsel for appellant at the original trial could not reasonably anticipate that the chancellor would “predicate his award of alimony on the appellant’s reneging on his promise to remarry the appellee.” The further argument is advanced that “counsel who appeared for the appellant at the hearing of September 10, 1975, (when appellant’s petition for rehearing was denied and alimony to the appellee awarded) was not the counsel who had tried the case originally. New counsel had been sought and engaged.” We find neither of these arguments persuasive. The granting of a rehearing was within the sound discretion of the chancellor and we find no abuse thereof. Austin v. Austin, 234 Md. 393 (1964); Mack Trucks, Inc. v. Webber, 29 Md. App. 256 (1975).

We find no merit in the contention that the chancellor erred at the hearing on September 10, 1975, in refusing to permit appellant “to introduce evidence bearing upon non-economic factors which would affect Patricia’s [appellee] right to an award of any alimony.” It is clear as the chancellor announced in his opinion following the hearing on September 10,1975, that he had concluded on the basis of evidence produced at the original hearing that the appellee “was entitled to receive alimony, provided she could justify the need for it. That was the purpose of this proceeding today, to determine whether or not she has a need for alimony and, if so, in what amount.”

The chancellor went on to say:

“In considering that question, the Court is required to follow the guidelines that have been expressed in many cases before the Court of Appeals on this subject, such as the husband’s wealth, earning capacity, financial circumstances of the parties, the age and station in life, physical condition of the wife, her ability to work, the length of time that the parties lived together, circumstances leading up to the separation, fault which destroyed the home, and so forth.”

This was an accurate delineation of the guidelines governing the amount of alimony to be awarded and from our review of the record, the chancellor followed them substantially to the letter. In our opinion, the award to the appellee of alimony in the amount of $115 per week was entirely appropriate and in no way “excessive” as appellant contends.

Decree affirmed; costs to be paid by appellant.

      . But see Donnelly v. Donnelly, 198 Md. 341 (1951).

      . As a matter of fact, it was stipulated “that there was no fraud” by either party.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    RICHARD DERBY a/k/a Richard T. Derby, Jr. v. FRANK P. JENKINS et ux.
    [No. 1018,
    September Term, 1975.]

      Decided July 27, 1976.

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

      Hyman Ginsberg and Donald E. Johnson, with whom were Ginsberg & Ginsberg on the brief, for appellant.

      L. Clark Ewing and H. Michael Hickson, with whom was Richard D. Harrington on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

In this malicious prosecution action the appellees, Frank P. Jenkins and Mary Louise Jenkins, a retired couple, recovered a judgment in the Circuit Court for Dorchester County for compensatory damages of $30,000 and punitive damages of $20,000 against appellant, Richard T. Derby, Jr., a cousin of Mrs. Jenkins. The civil case was the outgrowth of the arrest, trial and acquittal of Mr. and Mrs. Jenkins upon a charge of grand larceny, initiated by appellant, involving the alleged theft of a sofa and a mirror reflector from the home of appellant’s mother, Mrs. Nettie Derby, aged 86, also a cousin of Mrs. Jenkins but whom she called “Aunt Nettie.”

Mr. Derby seeks a reversal of the judgment against him, contending (a) that he had consulted counsel prior to obtaining the arrest warrants and had probable cause as a matter of law; (b) that counsel for appellees was improperly permitted in opening statement to make reference to Mr. Derby’s financial ability to withstand a judgment in the amount of the ad damnum and (c) that the question of punitive damages should not have been submitted to the jury. We reject appellant’s contentions and shall affirm the judgment.

I

Mr. and Mrs. Jenkins lived for a number of years in Montgomery County where Mr. Jenkins was president of a commercial enterprise and the couple were broadly engaged in church and community affairs. Upon his retirement in 1965 they moved to Talbot County. Mrs. Jenkins had been a visitor at “Belvoir,” the home of Aunt Nettie in Dorchester County, and these visits became frequent after she and her husband took up residence in Talbot County. Mr. Derby had known the Jenkinses for 30 or 40 years and was engaged in farming in Dorchester County. His relationship with his mother, Nettie, was apparently strained and there is testimony that he did not enjoy complete access to the mother’s residence for a long period of time.

In 1967 Mr. and Mrs. Jenkins moved to a smaller home in Talbot County. Not having sufficient wall space for an antique sofa which had been the property of her mother, Mrs. Jenkins testified that she was permitted by Aunt Nettie to place it at Belvoir. On another occasion, Mrs. Jenkins left a mirror reflector with Mrs. Derby with the apparent understanding that it would be returned to her whenever she wished.

As time passed, Aunt Nettie became enfeebled. In November, 1972, her son Richard, the appellant, was appointed guardian of her person and property by Order of the Circuit Court for Dorchester County. He was represented in these proceedings by Edward H. Nabb, an experienced attorney in Cambridge. Aunt Nettie was known to have made gifts over the years of some of her possessions, principally furniture, to various persons and her son, in his capacity as guardian, launched an effort to retrieve them with the assistance of attorney Nabb. Included among these items was a valuable antique desk which had been given by his mother to the daughter of Mr. and Mrs. Jenkins, an adult resident of Chevy Chase, Maryland. According to the testimony of Mr. and Mrs. Jenkins, this gift had been made some 14 years previously and Mrs. Jenkins candidly advised attorney Nabb that the desk had been given and accepted in good faith at a time when Mrs. Derby was in good health, both mentally and physically, and there was no legal nor moral justification for its relinquishment to Mrs. Derby.

Prior to this communication with Mr. Derby’s counsel, Mr. and Mrs. Jenkins had moved again, this time to a larger home at St. Michaels in Talbot County. According to their testimony, appellant made a visit to their new residence and requested their cooperation in obtaining the return, by their daughter, of the antique desk. At that time he also offered them the use of a pickup truck so that they could transport their sofa and mirror reflector to their new and larger residence. Later on, according to their testimony, he withdrew this offer and informed them that “You will get your sofa when you get those things back that my mother gave away.”

On July 11, 1973, Mr. and Mrs. Jenkins went to Belvoir. Aunt Nettie was asleep and the only other person present was her nurse, Eva Sellers. With the assistance of the son of a neighbor in St. Michaels, Mr. Jenkins placed the sofa and mirror reflector in a station wagon and transported them home. Derby appeared at Belvoir that evening and, upon learning from Mrs. Sellers of the activities of Mr. and Mrs. Jenkins earlier in the day, he communicated with attorney Nabb by telephone and also talked with him on the street near the Yacht Club in Cambridge. Thereafter Mr. Derby made application for separate arrest warrants for Frank P. Jenkins and Mary Louise Jenkins, which were issued by the District Court of Maryland for Dorchester County, charging them with grand larceny.

The Talbot County and Dorchester County sheriffs appeared at the home of Mr. and Mrs. Jenkins in St. Michaels after 10:00 p.m. as they were preparing to retire, and placed them under arrest. They were permitted to accompany the sheriffs in their own vehicle to the local jail at Cambridge, in Dorchester County, where they were “processed” and released on their own recognizance at midnight. Some two months later, they were acquitted after a trial at which appellant testified against them.

II

With respect to appellant’s first contention — that he was entitled to a directed verdict because probable cause was established as a matter of law — we note preliminarily the well-established elements of a case for malicious prosecution of a criminal charge:

a) a criminal proceeding instituted by the defendant against the plaintiff;
b) termination of the proceeding in favor of the accused;
c) absence of probable cause for the proceeding; and
d) malice — in this instance meaning that the defendant’s primary purpose in instituting the criminal proceeding is other than that of bringing an offender to justice.

Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Banks v. Montgomery Ward & Company, Inc., 212 Md. 31, 128 A. 2d 600 (1957); Shipp v. Autoville Limited, 23 Md. App. 555, 328 A. 2d 349 (1974).

Basically, the contention of appellant here is that there is no evidence legally sufficient to show that he acted without probable cause and, hence, he should have been granted a directed verdict. In the face of such contention we, of course, apply the fundamental rule that the evidence and inferences fairly deducible from the evidence must be viewed in the light most favorable to the parties against whom the motion is directed, here Mr. and Mrs. Jenkins. Levine v. Rendler, 272 Md. 1, 320 A. 2d 258 (1974); Picone v. Talbott, 29 Md. App. 536, 349 A. 2d 615 (1975). Of course, the burden of proof is on the plaintiffs to show that the defendant instituted the criminal proceeding without probable cause. In Maryland .it is well established that this burden is not sustained in a malicious prosecution case where the instigator of the criminal proceedings in a proper case acted upon the advice of counsel. Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 287 A. 2d 280 (1972); Kennedy v. Crouch, 191 Md. 580, 62 A. 2d 582 (1948). The rationale of the rule as explained by Judge Delaplaine in Kennedy v. Crouch, supra, is that if a person who is contemplating the initiation of criminal proceedings obtains the advice of counsel and acts in reliance upon such advice “he is protected not only because the adviser can view the facts calmly and dispassionately, but also because he has the ability to judge the facts in their legal bearings.” The Court went on to delineate the factual showing necessary to sustain the advice-of-counsel defense: ,

“Proof that he placed the facts fully and fairly before his counsel and acted upon his advice is a good defense to the charge of want of probable cause.” At 587.

And, as Judge Smith emphasized in Gladding Chevrolet, supra, “there must be no material fact concealed from the attorney.” (264 Md. at 507).

When Mr. Derby testified in his own behalf in the trial below, he said that he had “told Mr. Nabb everything there was to tell him” without specification, however, of the facts he related. Upon cross-examination, he testified that he did not know who was the owner of the sofa retrieved by Mr. and Mrs. Jenkins and also quoted himself as saying to counsel Nabb, “Ed Jenkins has removed the furniture.”

The testimony of Mr. Nabb, counsel for some 20 years to Mr. Derby, discloses that he was informed by appellant that he had visited his mother on July 11, 1973, that as he left her property he observed a pickup truck enter the road and that upon his return later he discovered that two items of furniture had been removed; that he gave counsel the names of the people involved and stated that he had previously advised them to remove nothing from the house. “I gathered from him that he wanted the removal of property by any person from those premises stopped. That he wanted to recover what had been removed.” In addition, counsel testified:

“I did not know the type of people that would remove the property and I tried to get from him a description of them, and the only description I got was primarily of age; he described them as older people. I had no way of knowing whether they were vigorous old people or whether they were people who may be under mental disability, and I told Mr. Derby that he should work within the framework of the law, that he should not in anyway have any altercation or go visit these people, and the immediate legal move would be to have them charged with illegal entry into a property over which he had dominion and removal of property which he explained to me belonged to him and his mother, or to his mother, under my interpretation of the meaning of his guardianship.
“Mr. Derby at the time was somewhere between distraught, aggravated and annoyed, and I did not want him to have any direct contact with any of these people. That is the limit of my personal knowledge of what transpired. I did explain to him that he didn’t go to the jail, he went to the District Court office, where he would be questioned by a trained commissioner who would further determine whether a warrant be issued, that it wasn’t an automatic thing.”
“My instructions to him were, my suggestions I would think rather than instructions were, that I, in my opinion, there had been an illegal entry of property over which he had dominion; either an entry by force or entry by subterfuge, and he had an obligation to stop this sort of thing. And by him having the people brought before the proper Court would certainly, in my opinion, stop it. I didn’t want it to occur again in a day or week or month and Mr. Derby involved in what could be an altercation. I did instruct him, as I mentioned, that he would have to go before a commissioner. I had no idea that he would or would not attempt to get a warrant that night. As a matter of fact, my discussions with him had to do with the local District Court, and I didn’t tell him not to get a warrant that night, I presumed that the following day he would go to the District Court and either be given a warrant or be refused a warrant.”

On direct examination Mr. Nabb was also asked the following question with reference to his client’s motivation:

“Q. Mr. Nabb, to your knowledge, did Mr. Derby have any other reason to take out warrants against the Jenkinses, other than getting the property back, bringing the offenders to justice, so to speak?
A. Yes, he told me he wanted to stop any further things being taken and intrusions.”

It is thus apparent that appellant’s attorney was aware to only a limited extent of the background of Mr. and Mrs. Jenkins and the long relationship between them and Mr. Derby. Apparently he was not told that they were relatives; nor was he informed that Mr. and Mrs. Jenkins had made clear to Derby their ownership of the furniture involved nor that he himself had recognized their ownership in the furniture previously and, indeed, had offered — and later withdrawn the offer — to provide the means for transporting the sofa from his mother’s home to theirs.

It is clear upon the record before us that the jury in this case, following the clear and concise instructions of the court on this specific issue, could fairly find that Mr. Derby failed to place material facts fully and fairly before his counsel and did not act upon his advice in a bona fide manner. Kennedy v. Crouch, supra. Cf. Gladding Chevrolet, Inc. v. Fowler, supra. The claimed ownership by Mr. and Mrs. Jenkins in the two furniture items and Mr. Derby’s own prior recognition of their claim were of critical importance and should clearly have been related by Mr. Derby. The defense was properly submitted to the jury and the evidence was sufficient to support the jury’s determination.

We note appellant’s contention, urged in his reply brief, that the evidence showed a case of probable cause “independent of consultation with counsel.” Probable cause has been frequently defined in the cases as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty. Banks v. Montgomery Ward & Company, Inc., supra; Gladding Chevrolet, Inc. v. Fowler, supra. It is well settled that the existence of probable cause is a question to be determined as a matter of law by the court upon a given set of facts but when the facts are disputed the question must be submitted to the jury under adequate instructions. Montgomery Ward & Company, Inc. v. Cliser, 267 Md. 406, 298 A. 2d 16 (1972); Shipp v. Autoville Limited, supra. As the principle was stated in Kennedy v. Crouch, supra:

“If the facts relied on to constitute probable cause, or the inferences to be drawn therefrom, are clear and undisputed, the question is one of law for the court; but if the evidence or inferences to be drawn therefrom are disputed, it becomes a mixed question of law and fact. Nance v. Gall, 187 Md. 656, 669, 50 A. 2d 120, 126.”

In the instant case the issue of probable cause was properly submitted to the jury with appropriate instructions by the trial court. There was evidence, viewed in the light most favorable to the Jenkinses, that appellant knew that the chattels belonged to Mr. and Mrs. Jenkins and that no larceny could have been committed and therefore that he did not have proper cause to prosecute.

We must also reject appellant’s contention (third in number) that the issue of punitive damages should not have been submitted to the jury. The existence of malice may be inferred by the jury from want of probable cause and is implicit in a verdict for the plaintiff in a malicious prosecution case. Kennedy v. Crouch, supra; Safeway Stores, Inc. v. Barrack, 210 Md. 168, 175-76, 122 A. 2d 457 (1956). Since malice was properly before the jury, so also was the issue of punitive damages. Montgomery Ward & Company, Inc. v. Keulemans, 275 Md. 441, 340 A. 2d 705 (1975).

Ill

Prior to trial in this case a stipulation was entered into between the parties that if a judgment in the amount of $350,000 were to be rendered against Mr. Derby, his assets were sufficient to pay such a judgment.

In his opening statement, counsel for Mr. and Mrs. Jenkins informed the jury, without objection, of the amount claimed in the ad damnum and he went on to explain that: “It will be stipulated that Mr. Derby’s assets are sufficient to pay this, these judgments if rendered.” This occurred toward the conclusion of the opening statement, the final paragraph of which was as follows:

“This is an unusual type of case in that you are permitted, and this is the only reason I’m permitted to mention that there has been a stipulation, Mr. Derby’s assets are sufficient to pay a judgment in the amount of the claim in this case. This is an unusual type of case because you are permitted to consider the Defendant’s means. I don’t know of any other type case in which this is permissible. And the reason, in my opinion, is a darn good one. It’s obvious that for a person whose total assets are $10,000.00, a judgment against that person for $10,000.00 is ruinous, but a person whose total assets are $350,000.00, as will be stipulated, a judgment of $10,000.00 is relatively picayune.”

Before commencing his own opening statement, counsel for Mr. Derby asked to approach the bench and the following colloquy occurred:

(Mr. Johnson) Your Honor, if it please the Court, we would like to make an objection on the record as to counsel’s statement in opening argument pertaining to the picayune worth [sic] of the Defendant. We feel that this is prejudicial to the Defendant in the case and that it should not be admitted until after a decision is made as to whether there is malice in this case, that is whether or not the jury finds for the Plaintiff.
(The Court) You are saying that the jury should retire and bring in a verdict and then there be evidence as to punitive damages and financial worth?
(Mr. Johnson) Yes, sir.”

The court overruled the objection. Thereafter, during the course of the trial, immediately prior to the testimony of Mary Louise Jenkins and in the presence of the jury, the stipulation was announced on the record and counsel for Mr. Derby stated, “Your Honor, we feel that that would be correct — the stipulation.”

The financial ability of a defendant to withstand a verdict of punitive damages in a proper case is, of course, admissible. Sloan v. Edwards, 61 Md. 89 (1883); Heinze v. Murphy, 180 Md. 423, 431, 24 A. 2d 917 (1942); Carl M. Freeman Associates, Inc. v. Murray, 18 Md. App. 419, 306 A. 2d 548 (1973). As Judge Scanlan stated in Murray, supra:

“Damages which may constitute proper punishment or provide a sufficient deterrent in the case of a defendant of modest means may not serve those purposes so far as a more affluent defendant is concerned. Conversely, ‘a verdict that would scarcely be regarded by a wealthy man, might be ruinous to a poor man.’ Bell v. Morrison, 27 Miss. 68, 86 (1854). Thus, in the assessment of punitive damages it is proper to consider the pecuniary circumstances of the defendant.” 18 Md. App. at 428.

As appellees contend, evidence admissible at trial is ordinarily a subject for inclusion in an opening statement. This proposition, however, has its limitations. The distance can be vast between the mere assertion of entitlement to punitive damages and proof that the remedy is properly claimed. The plaintiffs proof at the trial must be sufficient to establish at least a prima facie case for punitive damages before evidence of the defendant’s means may be offered. There is an obvious potential for prejudice on the issue of liability if a defendant’s net worth is disclosed in opening statement and the court later rules that a case for punitive damages has not been shown. When punitive damages are claimed, references to the net worth of the defendant should not, in our judgment, ordinarily be made in opening statement and may provide grounds for a mistrial.

In this case, however, we find no basis whatever for appellant’s claim of reversible error. There was solely an objection — without any motion for a mistrial nor request for a curative instruction. Furthermore, the stipulation concerning Mr. Derby’s assets came into evidence thereafter with the concurrence of appellant’s counsel. Surely under these circumstances any objection would have been waived. Maryland Rule 522 d 2; S. & S. Building Corp. v. Fidelity Storage Corp., 270 Md. 184, 310 A. 2d 778 (1973). But beyond all this, as we have found, a case for punitive damages was clearly established and any impropriety in counsel’s opening comments was cured.

Judgment affirmed; appellant to pay the costs.

      . The appellant owned a one-third interest in the personal property at Belvoir because his father had died intestate in 1941.

      . Mr. Derby moved for a directed verdict at the end of the plaintiffs’ case and at the end of the entire case and the motion was denied. After the verdict he moved for judgment n.o.v. or for a new trial which, after hearing, was also denied.

      . There was no cross-examination of Mr. Nabb.

      . We note that the damages claimed in the declaration aggregated $150,000 for each of the plaintiffs. The basis for the stipulation is not disclosed in the record.

      . In joint defendant cases a number of courts do not permit a plaintiff to introduce evidence of the financial worth of any of the defendants. Washington Gas Light Co. v. Lansden, 172 U. S. 534 (1899). There is no appellate ruling in such a case in Maryland.


author: Melvin, J.,

text:
    EMMETT GUY EDWARDS, JR. v. STATE OF MARYLAND
    [No. 1042,
    September Term, 1975.]

      Decided July 27, 1976.

    The cause was argued before  Gilbert, Menchine and Melvin, JJ.

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Steven Sacks, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On August 5, 1975, the appellant, Emmett Guy Edwards, was brought to trial in the Criminal Court of Baltimore on a charge of assault arising out of an incident that occurred on December 7, 1974. In addition to the assault charge he had originally been charged with illegally possessing a dangerous and deadly weapon and larceny, also arising out of the December 7 incident.

As a result of plea negotiations with the State, appellant offered a plea of guilty to the assault charge in return for the State’s agreement to nol pros the other two charges if the plea would be accepted by the court. As part of the bargain the State also agreed to make no recommendation as to the sentence to be imposed. The plea was accepted and the appellant was sentenced to 8 years imprisonment.

Appellant’s sole contention for reversal is that “the record does not affirmatively show that appellant voluntarily and intelligently waived his privilege against compulsory self-incrimination when he entered his plea of guilty.”

Prior to the recent decision of the Court of Appeals in Davis v. State, 278 Md. 103 (1976), we would have had no difficulty in agreeing with this contention, for we had interpreted Boykin v. Alabama, 395 U. S. 238 (1969), as a holding by the Supreme Court that the due process clause of the Fourteenth Amendment requires state trial judges to specifically inform defendants of the essential elements of their privilege against compulsory self-incrimination before accepting their guilty pleas. See English v. State, 16 Md. App. 439, cert. granted, 268 Md. 748 (1973), cert. dismissed as improvidently granted, July 3, 1973; Williams v. State, 10 Md. App. 570 (1970), cert. denied, 261 Md. 730 (1971); McCall v. State, 9 Md. App. 191, cert. denied, 258 Md. 729 (1970); Silverberg v. Warden, 7 Md. App. 657 (1969).

In Davis v. State, 28 Md. App. 50, 58 (1975), we modified our prior holdings that strict compliance with Boykin was required, by holding that “substantial compliance” waá sufficient where the “constitutional privilege against self-incrimination has been adequately identified and verbalized in non-technical language”. In Davis, the appellant had been informed that “if you plead not guilty you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the stand the prosecuting attorney may not comment or make reference to your failure to testify.” Id. at 53. Speaking for this Court, Judge Moore said, at 58:

“In the instant appeal, the appellant was advised by the court accepting his plea that (a) he would not have to take the witness stand unless he desired to do so and (b) if he did not take the stand ‘the prosecuting attorney may not comment or make reference to your failure to testify.’ In addition, he was told that at a trial he would be presumed innocent until proven guilty beyond a reasonable doubt. The substantial effect of these latter statements was, we think, the fair equivalent of advice to the appellant that no inference as to his guilt could be made on the basis of his failure to testify. In other words, we consider that substantial compliance with the requirements of Boykin, as previously interpreted by this Court, was achieved. We do consider it preferable that the trial judge inform the defendant not only that his failure to testify may not be used as a basis for comment against him but also that it may not be used as an inference to be weighed on the issue of guilt. Failure to do so, however, does not constitute reversible error where, as here, the constitutional privilege against self-incrimination has been adequately identified and verbalized in nontechnical language. ” (Emphasis added.)

In the present case, at the request of the trial judge, appellant’s trial counsel explained to appellant that he had “certain rights with reference to these charges against you”. So far as the record is concerned, the only reference remotely related to the privilege against self-incrimination is contained in the following question and answer:

“MR. KATZEN: That by taking a plea of guilty to the assault you are — this is the highest form of self-incrimination, that you are telling the State there is nothing else to be done by the State, except the disposition or sentencing by the judge.
THE DEFENDANT: Yes, sir.”

We think the question and answer merely reflected the appellant's understanding that by pleading guilty he was confessing to the assault charge and no further evidence was required of the State; all that remained was for the judge to impose sentence. Such an understanding is unrelated to appellant’s privilege against self-incrimination in a contested case. The question and answer did not even substantially comply with the requirement of our prior cases in that the constitutional privilege against self-incrimination was “not adequately identified and verbalized” even in “non-technical language”. Davis v. State, 28 Md. App. 50, 58 (1975).

As indicated, the Court of Appeals granted Certiorari in Davis and on July 7, 1976, affirmed our judgment, Davis v. State, 278 Md. 103. In doing so, however, Judge Digges, speaking for five members of that court, did not base the affirmance on any finding that there had been “substantial compliance” with what we had supposed to be the requirement of Boykin regarding acceptance of a guilty plea, i.e., that acceptance of a guilty plea is not effective unless the record affirmatively shows that the accused understood and waived: 1) the privilege against compulsory self-incrimination, 2) the right to trial by jury, and 3) the right to confront his accusers. Rather, the acceptance of the plea was upheld in Davis because “the record taken as a whole affirmatively discloses that the petitioner’s plea was, as found by the trial judge, voluntary and intelligent”. Id. at 118. The Court made it clear that, contrary to our prior holdings, “Boykin does not require specific reference to and waiver of the three rights” there enumerated before a guilty plea may be effectively accepted by the trial court. “In order to determine whether there had been compliance with the applicable standard, courts usually looked to the totality of the circumstances as reflected in the entire record”. Id. at 109. The “applicable standard” referred to by the Court is simply “that the voluntary and intelligent nature of guilty pleas need be clearly established in the trial court before they are accepted”. Id. at 108-109. Whether that standard has been met in the case sub judice depends upon our independent review of the record.

Even by the less strict standard announced by the Court of Appeals in Davis, we cannot find that the voluntariness of appellant’s plea was “clearly established” by the record. No questions were asked of him by the trial judge or his counsel as to whether his plea was in fact voluntary; no information was elicited from him as to whether, aside from the “plea bargain”, his plea was the result of any improper promises, threats, or inducements; nor did the trial judge, either before or after accepting the plea, make a finding that it was either voluntarily or intelligently entered.

We therefore hold that what we now perceive to be the applicable standard for the acceptance of guilty pleas has not been met. Davis v. State, 278 Md. 103 (1976).

Judgment reversed; case remanded for new trial.


author: Menchine, J.,

text:
    STEVEN LEE NISHCHUK v. STATE OF MARYLAND
    [No. 1099,
    September Term, 1975.]

      Decided July 27, 1976.

    The cause was argued before Powers and Menchine, JJ., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit, specially assigned.

      Gary Masían, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and William Monfried, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Steven Lee Nishchuk (appellant) was convicted by a jury in the Criminal Court of Baltimore on two counts of storehouse breaking under indictment 1451 and on one count of unauthorized use of a motor vehicle under indictment 1454. He was sentenced to imprisonment totaling eight years.

On appeal he contends, inter alia, that the trial court erroneously refused to admit the testimony of a qualified witness who had been called to impeach the credibility of a State’s witness.

The issue arose in the following manner:

One Allen Lee Johnson, jointly charged with one William Allen Hadel and the appellant in indictment 1451, was called as a witness by the State. Johnson, acknowledging his own participation in the offense, implicated Hadel and the appellant as his accomplices. At the conclusion of the State’s case defense counsel declared: “Your Honor, the defense would call Joyce Davenport.” At that point the assistant State’s attorney made a preliminary motion “that this defendant proffer to this Court what Ms. Davenport would testify to and the nature of her testimony.” Defense counsel initially resisted the State’s motion, saying:

“I think the State is using this forum for purposes of discovery technique, and I know of [no] precedent where the State has been permitted to discover what a defense witness would testify to prior to that witness taking the stand.”

Thereafter, however, defense counsel made two separate proffers as to the proposed testimony of the witness. The first was as follows:

“Your Honor, the defense would proffer that Ms. Davenport would testify as follows: That she has known Mr. Johnson for a period of two years; that she has lived in the community with — where Mr. Johnson resides; that she has spoken with other individuals concerning Johnson’s reputation for truth and veracity; that she knows specifically herself of incidents relating to Mr. Johnson’s reputation for truth and veracity.”

The second was as follows:

“Your Honor, at this time the defense would have called Joyce Davenport as their next witness, and I would like to proffer to the Court what Ms. Davenport’s testimony would have consisted of. Ms. Davenport would have testified that she had known the State’s witness, Mr. Allen Johnson for a period of two years. That Ms. Davenport, in fact, lives in the community where Mr. Johnson lives. Ms. Davenport knows Mr. Johnson’s reputation for truth and veracity in the community, and that this reputation is that he is a known liar. That further Ms. Davenport would testify that if Mr. Johnson was testifying under oath, Ms. Davenport would not believe him. That would be the substance of her testimony.”

The second proffer was the subject of the following ruling by the trial court:

“Well, gentlemen, under the necessary prerequisite, as outlined in Braxton v. State, in 11 Md. App. [435, 274 A. 2d 647 (1971)], inasmuch as there is no evidence asserting the good character of the witness, Mr. Johnson, put into evidence, I think that the prerequisite is missing, and therefore that it is not an issue, and as such, therefore, the proffer is denied and overruled.”

It long has been recognized in Maryland that a witness may be impeached by the testimony of other witnesses familiar with the former’s general reputation for truth and veracity.

In Davis v. State, 38 Md. 15 (1873), it was said at 50: “The credit of a witness, however, may be impeached by evidence assailing his character for veracity;...”

In Sloan v. Edwards, 61 Md. 89 (1883), it was said at 103:

“The long settled practice, both in England and in this State, though departed from to some extent in a few of the States in this country, requires that the witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors, and what that reputation is. The evidence must be confined to general reputation, and the very form of the question assumes and implies that such general reputation must be known and proved as an affirmative fact, and not as an inference from a mere absence of common repute. Knight v. House, 29 Md. 194, 199; Vernon v. Tucker, 30 Md. 456. As laid down in I Greenl. Ev. sec. 461, the witness ‘must be able to state what is generally said of the person by those amongst whom he dwells, or with whom he is chiefly conversant, for it is this only that constitutes the general reputation or character.’ This principle was fully adopted by this court, in the case of Vernon v. Tucker, just referred to; and it is supported by all the text writers upon the subject. Taylor, in his work on Evidence, sec. 1324, says, ‘The regular mode of examining into the character of the person in question, is to ask the witness whether he knows his general reputation among his neighbors, — what that reputation is, — and whether, from such knowledge, he would believe him upon his oath.’ ”

In Poff v. State, 3 Md. App. 289, 239 A. 2d 121 (1968), this Court recognized the continuing viability of the legal principle stated in Sloan v. Edwards, supra, although' we affirmed in Poff because the proffered testimony showed that the proposed witness “... did ... not know the general reputation of the prosecuting witness for truth and veracity among his neighbors [and] the inquiry ... had no reference to the general reputation of the witness for truth and veracity.” (at p. 291 [123])

In Taylor v. State, 28 Md. App. 560, 346 A. 2d 718 (1975), we discussed impeachment of the credibility of character witnesses by cross-examination. We there pointed out that legislative action had broadened the permissible use of testimony by character witnesses, saying at 567-68 [722]:

“A character witness at common law could be cross-examined about specific or particular acts or courses of conduct of a defendant, but on direct examination he could not testify to such specific or particular acts or courses of conduct. His testimony was, in essence, limited to what he heard from others about the defendant’s reputation. The common law has been modified by statute in Maryland. Courts and Judicial Proceedings Article § 9-115 provides:
‘Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.’
“As a result of the enactment of what is now Courts Art. § 9-115, Maryland possesses the common law rule with a vastly broadened field of vision. No longer is a character witness prevented from speaking of specific acts or precluded from demonstrating a basis of knowledge leading to his own independent opinion. To an extent, this State has eliminated some of the underlying hearsay present in the common law rule relative to character witness testimony.

Compare: Brown v. State, 29 Md. App. 1, 16, 349 A. 2d 359, 368 (1975).

In the subject case the proffered testimony of the witness Davenport fully meets the essential requisites for the admissibility of impeachment evidence. In such circumstances we hold that the trial court’s rejection of testimony by the proffered witness was erroneous.

The trial court’s reliance upon Braxton, supra, was misplaced. Braxton dealt with an erroneous failure to grant “an instruction with respect to the evidence of [the accused’s] good character.” (at p. 442 [651]) This Court also pointed out in Braxton, at 439 [649], that the issue there presented was to be “distinguished from the limited concept of character within the impeachment rule as relating only to credibility,...” Indeed, the State in its brief concedes that Braxton has no application in the subject case, but argues alternatively, (a) that requisites to admissibility of impeachment testimony had not been met (a contention we have previously rejected), or (b) that any error was harmless beyond a reasonable doubt.

Passing to the question whether the exclusion of the evidence constituted harmless error, we observe that apart from the testimony of the witness Johnson, there was no evidence of any participation by appellant in any of the charged offenses — save for police testimony that appellant had made the statement, “I did it. Prove it.” The appellant denied making such a statement.

Appellant executed a waiver of Miranda rights and was interrogated by a police officer for about a half hour. The following excerpt from the record fairly represents the police testimony as to the disputed statement:

“Q Well, ... would it be fair to say that Mr. Nishchuk denied his involvement each and every time that you asked him a question; would that be fair to say?
A Denied until I laid it out for him what I knew.
Q That was to the very end, when you claim he blurted out this statement; is that correct?
Q Is that correct, that was at the very end?
A Yes. That was just about at the end.
Q You claim he said, T did it, Proye it.’ ?
A That was his words.”

Appellant’s version of what he said to the interrogating officer was as follows:

“Q Did you make any statements at all concerning proving a case in a Court of law?
A Yes, sir. After he was questioning me so much, I got tired of telling him that I was not involved in it. So, I told him, I said, ‘Well prove it in Court.’
Q You said, ‘Well, prove it in Court’ ?
A Yes, I did.
Q Meaning what?
A Meaning the fact that all he was saying to me from the time he arrested me, that I was guilty, until the time that he left me.
Q You emphatically denied this?
A Yes, sir.”

The officer acknowledged that he did not indicate upon his investigative report the fact that the appellant had made an inculpatory statement, nor did he “write down that statement anywhere.”

In Dorsey v. State, 276 Md. 638, 659, 350 A. 2d 665, 678 (1976), the late Judge William J. O’Donnell, after careful analysis of Supreme Court and Maryland cases relating to harmless error in criminal cases, re-examined the Maryland position on the subject and thus stated for the Court of Appeals the test to be applied in its determination:

“We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.” (Footnote omitted.)

Upon our own independent review of the entire record we are unable to say that the rejected evidence might not, if admitted, have influenced a verdict in appellant’s favor. Its rejection was thus not “harmless” error.

In light of the fact that we must reverse for a new trial, we do not reach other issues suggested by appellant.

Judgments reversed.

Cases remanded for a new trial.

      . Affirmed #158, September Term 1975, filed July 13, 1976, 278 Md. 150, 360 A. 2d 430.

      “5. Originally enacted by Laws of Maryland 1971, ch. 760, and codified as Md. Ann. Code art. 35, § 13C. Upon the adoption at the 1st Special Sess. 1973 of the Courts and Judicial Proceedings Article, former Code art. 35, § 13C became § 9-115.

      “6. The rule at common law did not allow a character witness to testify about specific acts or courses of conduct of a defendant, nor was the witness permitted to express his own independent opinion even though it was based on acquaintance, observation, or actual knowledge. Rather the witness was required to discount what he knew and credit what he had heard from others not withstanding that the witness may or may not be more qualified to make a judgment than those upon whom he had to rely. Michelson v. United States, supra.” [335 U. S. 469]


text:
    BERNADINE BOYD v. WILLIAM D. BOYD
    [No. 1105,
    September Term, 1975.]

      Decided July 28, 1976.

    The cause was argued before  Orth, C. J., and Powers and Moore, JJ.

      Paul J. Bailey, with whom were Bailey, Bailey & Broms on the brief, for appellant.

      John P. Rue, II, with whom were Dorsey & Rue on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal is from a decree, in a partition proceeding, that a 190-acre farm located in St. Mary’s County be sold pursuant to subtitle BR of the Maryland Rules of Procedure, the court having determined that ¡ the property was not “subject to partition in kind.” Appellant contends that the decree was clearly erroneous and that the court should have appointed Commissioners to investigate the matter of division of the property as prayed in her answer. We disagree and affirm.

I

In his bill of complaint, filed in the Circuit Court for St. Mary’s County, Dr. William D. Boyd alleged that the property (hereinafter described) was not “susceptible to partition among those entitled to an interest therein without material loss and injury to them” and prayed that the property be sold and the proceeds divided. Appellant, Bernadine Boyd, alleged in her answer that the property was susceptible of partition in kind without material loss or damage to the parties in interest and requested “that a Commissioner be appointed under the Rules of this court to investigate same and divide same.” Thereafter, counsel for the respective parties stipulated that testimony be taken by deposition, “said depositions to be submitted to the court as evidence for its consideration as to whether or not the property ... is subject to partition in kind.”

Testifying before a Standing Court Examiner in support of the bill were the appellee, Dr. Boyd, and an expert real estate broker and appraiser, J. Spence Howard, Jr., of St. Mary’s City. Appellant offered her own testimony; that of her son who had operated the farm for some 22 years, and of a neighboring farmer who had once owned the property in question but had not seen it for a number of years.

Some three weeks after the taking of the depositions, in Chambers, in the presence of counsel, the Chancellor delivered an oral opinion in which he recited that the parties “have submitted an issue to me to decide on the basis of depositions taken ...” and stated the following conclusion:

“After reading these depositions the Court is of the opinion that the property can not be divided into two equal shares without loss or injury to the parties.”

In support of that determination the court reviewed the testimony of the witnesses, including “the only expert testimony in the case” and characterized as “rather convincing” the reasons of Mr. Howard (the real estate appraiser) for his opinion that this small farm could not be partitioned in kind without loss or injury to the parties interested.

From the evidence before him the court found the property to be described as follows:

“The property is described as a farm property with a Civil War dwelling and several tobacco barns. There are approximately seventy acres of cleared land, farm land. The rest is in woodland, some scrub timber and some with perhaps some marketable timber. It fronts on two roads, two improved roads, hard surface roads. One road is the Baptist Church Road, the road on which the cropland is situated and all of the cropland approximately is contiguous. That road has a frontage of some four thousand feet running along the eastern boundary of the property constitutes the eastern boundary of the property.
“The other road on the back or west boundary of the property has a frontage of some two thousand feet.”

As to the evidence of the property’s best use, the court stated:

“Mr. Howard states that thé highest and best use of this property is as a farm property and that to divide the seventy acres of crop land would be detrimental to the property as a whole.
“In other words to divide it into two small farms would make property, the two halfs, worth less than the whole property as a farm.”

Referring to the testimony of the appellant and her witnesses, the trial court observed:

“The defendant, and her two witnesses, her son and Mr. Hill, who owns the adjoining farm and is a farmer, none of whom are experts in the field, merely give their unsupported opinion that the property is susceptible of division in kind into two equal portions, but none of them suggest how that division could be made.
“The defendant indicates that she would desire a part of the crop land as well as her share of woodland, although she is willing for the plaintiff to have the dwelling. But to attempt to make this type of division the Court feels would cut the property up into two halfs [sic] which would not be worth as much, assessing value of the two halfs, as much as the property is now worth in its entirety, a going farm operation.”

Pronouncing his decision, the Chancellor stated:

“Therefore, it is the decision of this Court that the commissioners — that there is no necessity for the appointment of commissioners in this case because there is no evidence to convince the Court that there is a reasonable probability that the property could be divided into two equal shares and that therefore the plaintiff has met the burden of proving that property is not susceptible to partition in kind and that the Court will sign a decree for the sale of the property.” (Emphasis added.)

Appellant contends that there was a “possibility that the tract could have been partitioned in kind without loss or injury [and] the Chancellor should have appointed Commissioners to ascertain whether the land was susceptible of partition.” This view of the substantive and procedural law relating to partition in Maryland is erroneous.

II

Partition has been defined as “[the] dividing of lands held by joint tenants, coparceners, or tenants in common, into distinct portions, so that they may hold them in severalty.” Black’s Law Dictionary. At common law, the only mode of partition of land was partition in kind. The rigors of this rule have been relieved by statute, Real Property Article, § 14-107 and by subtitle BJ of the Maryland Rules of Procedure. Subsection (a) of the statute, quoted below, invests the Circuit Courts with jurisdiction in partition and provides for a sale in lieu of partition:

“(a) Decree of partition. — A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, parcener, or concurrent owner, whether claiming by descent or purchase. If it appears that the property cannot he divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights. The right to a partition or sale includes the right to a partition or sale of any separate lot or tract of property, and the bill or petition need not pray for a partition of all the lots or tracts.” (Emphasis added.)

Implementing the statute is subtitle BJ of the Maryland Rules of Procedure, adopted in September 1961, effective January 1, 1962. With respect to the commencement of partition proceedings, Rule BJ70 provides:

“An action for the partition of real or personal property or for the sale of same in lieu of partition shall be commenced by the filing of a bill in equity. If a sale in lieu of partition is desired, the bill shall so state.”

Rule BJ71 pertains to a sale of the property:

“If the court shall determine that a sale rather than partition is proper, such sale shall be conducted in the manner provided by Subtitle BR (Sales — Judicial).” (Emphasis added.)

And Rule BJ72 entitled “Commissioners” is, in pertinent part, as follows:

“If the court shall determine that partition is proper it shall so order, and unless all parties expressly waive the appointment of commissioners, shall commission not more than 5 nor less than 3 disinterested persons to value and divide the property in question....” (Emphasis added.)

It will thus be seen from the language of the Rules quoted above that the determination of whether property shall be partitioned in kind or be sold in lieu of partition, is for the court to determine; and the appointment of Commissioners (unless waived by the parties) becomes a factor only after the court itself has concluded that partition in kind is proper.

As we read and interpret appellant’s contention in brief and in oral argument, one of the fundamental issues raised by her pertains to the quantum of proof required for a determination as to whether property can be divided in kind or “cannot be divided without loss or injury to the parties interested.” § 14-107, supra. In this respect appellant places great reliance upon the following language of Judge Horney in Baltimore Gas and Electric Company v. Bowers, 221 Md. 337, 348, 157 A. 2d 610 (1960):

“[Sjince there was a possibility that the tract could be partitioned in kind without loss or injury, the chancellor should have appointed commissioners to ascertain whether the land was susceptible of partition... .” (Emphasis added.)

Appellant’s reliance upon the above dictum is misplaced. The Bowers case preceded by almost two years the adoption of Subtitle BJ of the Maryland Rules of Procedure, supra, and the above language is not consonant with earlier decisions of the Court of Appeals that the test of whether property should be sold in lieu of partition is not whether it is susceptible of partition in kind. Thruston v. Minke, 32 Md. 571 (1870). In Thruston the principles applicable in a determination of partition in kind vis a vis a sale in lieu of partition were clearly enunciated by Judge Alvey (later Chief Judge) in the following language:

“It does not follow, as the appellant seems to suppose, that became the property is susceptible of partition, it should not be decreed to be sold. As was said by this court, in Campbell v. Lowe, 9 Md. 500, every tenant in common is entitled to the separate enjoyment of his interest in the common property, either by partition or by sale and division of the proceeds, under our statutes. If it be alleged and proved that the estate cannot be divided without loss or injury to the parties interested [emphasis in original], the court is clothed with power, by the statute, (1 Code, Art. 16, sec. 99,) to decree a sale, and a division of the money arising therefrom among the parties, according to their respective rights. This statute provision is a modification of the previous law on the subject, and was intended to promote the interest of the parties concerned. It is, however, to be construed with reference to the pre-existing law, and if it is not made to appear that the estate cannot be divided without loss or injury to the parties interested, it must be partitioned in the ordinary way. Partition is matter of right, and the only modification of it with us is, that the estate may be sold instead of being partitioned in kind, if it be shown that the latter course cannot be pursued without loss or injury to the parties interested... . And though the estate may be susceptible of partition, yet, if loss or injury would occur to any of the parties thereby, and which could be avoided by sale, the latter is the proper mode by which to effect a separate enjoyment of the several interests in the estate. Here it is clear, partition without loss or injury, is impracticable if the property is to be preserved in its present condition, and for the purposes for which it was originally intended; and the only mode by which the interest of the parties can be rendered separate, and at the same time fully guarded and protected, is by sale. The court below was, therefore, right in decreeing a sale of the property.” (Emphasis added.)

In another early case, Johnson v. Hoover, 75 Md. 486, 23 A. 903 (1892) the court assayed the effect of the statute providing for sale in lieu of partition as follows:

“The right of partition in kind was an undeniable right if feasible. It existed irrespective of the statute under consideration; Campbell v. Lowe, 9 Md. 500; but where that was found to be impossible the right to a sale under the statute as the only means of effecting partition, became equally undeniable.” (Emphasis added.)

See also, Rowe v. Gillelan, 112 Md. 108, 76 A. 500 (1910); Brendel v. Klopp, 69 Md. 1, 13 A. 589 (1888) and Earle v. Turton, 26 Md. 23 (1866).

It seems clear that the ultimate issue is whether or not loss or injury will occur to the parties interested if the property is divided in kind. The burden of proof on the question of loss or injury is, of course, upon the complainant seeking a sale in lieu of partition. In determining whether the burden has been met, we think the language of Mr. Justice Story cited by the Court of Appeals in Dugan v. Mayor and City Council of Baltimore, 70 Md. 1, 8, 16 A. 501 (1889) is instructive:

“ ‘In matters of partition,’ says Judge Story, ‘a court founds itself upon its general jurisdiction as a court of equity, and administers its relief, ex aequo et bone according to its own notions of general justice and equity between the parties.’ 1 Story’s Eq. sec. 656 b.”

In this light and in view of the authorities above cited, the criterion is not whether there was a “possibility” that the tract could be partitioned in kind without loss or injury, but whether upon the basis of a preponderance of the evidence it appears that the property could not be divided without loss or injury to the parties interested. Bowers should not be read as requiring any different standard of proof. Appellant overlooks the finding of the Court of Appeals in that case that the “evidence as to partitionability [although] meager, was to the effect that the tract might be feasibly divided in kind” and that on the other hand there were only “unsupported assertions” that it was not divisible. In the light of these findings the case is clearly not a holding that a mere possibility that a tract of land could be partitioned in kind without loss or injury is a sufficient basis for a court of equity to resolve the issue against a sale in lieu of partition.

Furthermore, to hold as appellant urges upon us that Commissioners should have been appointed to “ascertain whether the land was susceptible of partition” would be totally at variance with the Maryland Rules previously quoted which precisely define the roles of court and commissioner and would improperly invest commissioners with judicial powers. As the Texas Court of Civil Appeals stated in Hensel v. Stum, 25 S. W. 817 (1894), “The law never intended to confer judicial powers upon the commissioners as would be done by letting their mere opinion decide whether property should be divided or sold.” Under Rule BJ72, the sole responsibility of the Commissioners is to “value and divide” the property in question.

Applying the above principles to the instant appeal our conclusions are: (1) That the Chancellor carefully considered all of the evidence bearing upon appellee’s petition for sale of the property, pursuant to a stipulation of counsel that this evidence be considered by the court in making its determination; (2) that the Chancellor correctly ruled “there was no evidence upon which it could be determined that the farm could be divided without loss or injury to the interested parties;” and (3) because the determination of the propriety of partition is exclusively in the province of the Chancellor, we could reverse his determination, as prayed by appellant, only if it were clearly erroneous. Maryland Rule 1086. In evaluating the result below, where, as here, the dispute concerns the sufficiency of the evidence, we must consider the evidence presented in a light most favorable to the prevailing party. Moon v. Weeks, 25 Md. App. 322, 333 A. 2d 635 (1975). Here the Chancellor was presented with substantial evidence that partition would work to the detriment of both parties. He did not clearly err in ordering that the land be sold rather than subjected to partition.

With respect to the motion included in appellee’s brief to dismiss the appeal pursuant to Maryland Rules 1036 and 1028 b (1) (a) and (b), we find that except for the opinion of the Chancellor which was apparently inadvertently omitted, appellant’s record extract was adequate; furthermore, appellee included in the appendix to his brief the opinion of the Chancellor, thus curing that deficiency. The motion to dismiss is accordingly denied.

Motion to dismiss appeal denied; decree affirmed; costs to be paid by appellant.

      . The Maryland partition statute first appeared as Acts of 1785 Ch. 72, § 12 and later, Acts of 1831, Ch. 311, §§ 1 & 9. Thereafter, upon enactment of the 1860 Code, it became Art. 16, § 99 which evolved into Art. 21, § 14-107. Under the recodification of the Code this statute has become Real Property Article § 14-107 (1974).

      . There was a series of three appeals arising out of the grant of an easement to the Baltimore Gas and Electric Company for the erection, operation and maintenance of a power transmission line across a tract of land in Baltimore County. The first appeal, Burnham v. Baltimore Gas and Electric Company, 217 Md. 507, 144 A. 2d 80 (1958) was an ejectment proceeding. On the second appeal, cited above, a partition proceeding, the Court of Appeals held that the company had a right to require the owner to seek partition in kind and remanded the case for further proceedings. Upon remand, the commissioners unanimously reported to the court that the tract could not be divided in kind “without loss or injury to some parties in interest.” The Chancellor therefore decreed the sale of the land and on the third appeal, the Court of Appeals affirmed. Bowers v. Baltimore Gas and Electric Company, 228 Md. 624, 180 A. 2d 878 (1961).

      . It is well settled that the rules, since they have the force of law, are to be construed in the same manner as statutes. Johnson v. State, 274 Md. 29, 333 A. 2d 37 (1975); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A. 2d 768 (1961).