author: Liss, J.,

text:
    LEON ALBERT DENT v. STATE OF MARYLAND
    [No. 85,
    September Term, 1976.]

      Decided November 5, 1976.

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

      Michael S. Elder, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      John A. Austin, Assistant Attorney General, with' whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mary Ann Willin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

When does “hot pursuit,” like “hot love,” cool off, so as to make a warrantless search of- a premises an illegal search and seizure? The answer to that question is dispositive of the principal issue in this case.

Appellant, Leon Albert Dent, was convicted by a jury in the Criminal Court of Baltimore (Dorf, J., presiding) in two cases of robbery with a deadly weapon and the use of a handgun in a crime of violence. Sentences were imposed, and it is from these judgments that this appeal was noted.

The facts as to the armed robberies are undisputed. The modus operandi was that of the typical “knock and rob” incident which has become so prevalent in our modern urban society: Responding to a ring of his doorbell, Thomas Beverly opened the door to two male strangers who identified themselves as insurance representatives and asked for an individual unknown to Beverly. After being told that this individual did not live at that address, the strangers left. A few minutes later the bell rang again, and when Beverly in response opened the door, the same two men pushed their way into his house at gun point. Beverly testified that one of the men grabbed him while the other began to beat his wife; he was forced to the second floor of the premises, ordered to turn over $150 in cash and his car keys, and then he and his wife were bound and forced to lie on the floor (on the first floor, to where he had been returned). The robbers were heard moving around the house for about 30 minutes; and when the noise subsided, Mrs. Beverly managed to free herself from her bonds, discovered that the intruders were gone, and untied her husband. The police were called, and their investigation revealed that an Admiral console color television set and Mr. Beverly’s car had been taken. In the course of their search, the police found two pairs of gloves, two masks, a loaded revolver, a bag, some rope and a blue denim jacket, which had been left behind by the robbers.

The following day, in an effort to identify the culprits, the police submitted a series of photographs to the victims: Mr. Beverly was unable to make any identification and his sole contribution to the investigation was to give the police a description of the clothing worn by the assailants. Mrs. Beverly was able to identify one of the photographs as that of the robber who had the gun. That person was the appellant. Neither of the Beverlys was able to identify the other robber.

In one of the pockets of the jacket found on the premises, the police discovered a handwritten note of an address and the name and telephone number of a woman. The police learned in a conversation with this young lady that she had recently met a man named Leon who fit the description of one of the alleged robbers and that she had visited him at an address on Midwood Avenue in Baltimore City.

About 5 p.m. that afternoon (some 30 hours after the robbery) the police went to the Midwood Avenue address, and Detective Moran, one of the detectives engaged in the investigation, went up to the second floor apartment and knocked on the door. He testified that he heard a “scuffling noise” coming from the apartment, and shortly thereafter, he was advised that the appellant had been arrested while running toward a gate in the rear of the premises. Moran then went to the first floor and basement of the house in an effort to gain admittance to the second floor apartment through a common stairway leading from the basement to the second floor. Both doors were locked. Moran, “feeling there was another subject in the apartment, wanted to get entrance into that apartment.” Because he did not want to break the lock, he called for an emergency vehicle with a ladder. One of the officers was then instructed by Moran to climb through the open second floor window and unlock the door. Upon gaining entrance, a search of the premises was made, but no second subject was found. Moran, at the trial, was asked by the State to describe how the apartment was furnished. Defense counsel objected on the ground that the entry to the apartment was illegal. The objection was overruled, and Moran was permitted to testify as follows:

“(By Miss Willin) Q. What were the furnishings in the apartment that you observed?
A. It was a bed, rather a mattress in the bedroom.
Also a television in the bedroom, a floor model color television. The kitchen had I think one on the table, a couple of chairs and there was a sofa. There was a chair in the living room, very scarcely furnished.
Q. What was the make of the floor model color television?
A. Admiral color television.
Q. What was the description of it?
A. Mahogany type of wood, wood console.”

Moran, believing the television set to be the one stolen from the Beverlys, returned to the police station and obtained a duly executed search and seizure warrant. Upon returning to the apartment, the police matched the serial number obtained from the Beverlys with that on the television set, and the officers seized the set. Photographs of the set were offered by the State and over objection by defense counsel were admitted into evidence. In overruling the objection, the trial court opined:

“No, they were on the premises under fresh pursuit. They have a right to be on the premises. At that time, there was something in their clear view, within the clear view doctrine. The question was a right to seize it at that time. They went back and got a search warrant and checked it out. I find the search warrant was legal.”

Appellant urges that the trial court erred in admitting evidence seized pursuant to a search warrant when the affidavit in support of the warrant was based on information obtained as a result of an illegal, warrantless search of the appellant’s apartment. We agree and shall reverse.

The point of departure in any case involving a warrantless search of a constitutionally protected area was articulated in Coolidge v. New Hampshire, 403 U. S. 443, 454, 91 S. Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971):

“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be a ‘showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’
‘[T]he burden is on those seeking the exemption to show the need for it.’ ” (footnotes omitted).

In order to sustain a warrantless intrusion into a dwelling, the State must demonstrate not only probable cause but also that the search falls within one of the “few specifically established and well delineated exceptions” to the general rule prohibiting warrantless searches. Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967). Included among these exceptions are the “hot pursuit” exception, Warden v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967), and “plain view” doctrine, Coolidge v. New Hampshire, supra. See also Davis v. State, 236 Md. 389, 204 A. 2d 76 (1964). It is upon these two exceptions that the trial court relied in admitting into evidence the testimony concerning the Admiral television set.

In Warden v. Hayden, supra, an armed holdup man robbed a cab company and fled. He was followed by two cab drivers who observed him enter a house. Within minutes the police arrived and were admitted into the house by one of the residents. Various pieces of evidence were found in the house. The Court held that neither entry without warrant to search for the robber nor the subsequent seizure of physical evidence without warrant was invalid. Under the circumstances “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U. S. 451, 456, 69 S. Ct. 191, 193, 93 L. Ed. 153, 158 (1948).

The Hayden Court said at 298:

“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them to effect an escape.”

In Fellows v. State, 13 Md. App. 206, 283 A. 2d 1 (1971), this Court held that where police arrived at the scene of a fatal stabbing and robbery and observed a fresh pool of blood and bloody footprints leading to the third floor of a building, their entry into the third floor apartment and discovery of a pair of bloody pants in a closet fell within the “hot pursuit” exception.

In United States v. Holland, 511 F. 2d 38, 46 (6th Cir. 1975), a divided Court upheld the warrantless search of a home within an hour after a bank robbery. Admitting that the case was “not without difficulty in constitutional terms,” the Court sustained the search under the “hot pursuit” doctrine. The majority opinion, however, included the following caveat:

“As indicated above, we feel the facts herein fell within the Hayden “hot pursuit” rationale; but the case is close enough to allow for some reasonable concern about that conclusion. We observe, however, that we regard this case as very near the outer perimeter of the Hayden doctrine, albeit still within it.”

Appellant contends that in order for the “hot pursuit” rationale to apply, the pursuit must be both immediate and uninterrupted. The State urges that the proper time frame for determining exigent circumstances does not begin when the offense is committed but rather when the investigation has revealed the location of the suspected offenders. It offers in support of its contention Nilson v. State, 272 Md. 179, 321 A. 2d 301 (1974); Dorman v. United States, 435 F. 2d 385 (D.C. Cir. 1970); and United States v. Harris, 435 F. 2d 74 (D.C. Cir. 1970). We are not prepared to accept either contention in its entirety. We believe the more acceptable rule is that the facts of each case must be the standard by which the existence of exigent circumstances must be measured. It is by this standard that we find the State’s position untenable.

The cases cited by the State in support of its position are factually inapposite to the case we are considering. In Nilson, supra, at 184, Chief Judge Murphy related the facts which led to the conclusion that the case fell within the “hot pursuit” doctrine:

“Indeed, as the evidence so dramatically reveals, within minutes after the crime was committed, the police were closely monitoring the movements of the suspected felons and the information which they received led unmistakably to the apartment house at Callow Avenue, and particularly to apartment 12. The police had general descriptions of the three robbers. They knew that at least three men were then in apartment 12 the same three that earlier that morning had driven off in the white Peugeot, a vehicle previously identified as having been used by the robbers. That one of the robbers was named McCoy was deemed likely because a ticket bearing his name and his Callow Avenue address was found in the stolen Pontiac which was used as the getaway car. Sergeant Shriner’s observation upon requesting entry to apartment 12 that Campbell fit the general description of one of the robbers added materially to the probable cause then possessed by the police.” (emphasis supplied).

In Dorman, supra, at 388, the issue was stated to be:

“[Wjhether the police acted unreasonably, and in violation of constitutional rights, when they proceeded, in furtherance of their objective to arrest a suspect they had probable cause to believe was an armed felon, to make a warrantless, unconsented non-fordble entry into his home late in the evening, at a time some few hours after the offense and within an hour after they obtained eyewitness identification of the suspect, and when a magistrate was not readily available.” (emphasis supplied).

The Court noted:

“Terms like ‘exigent circumstances’ or ‘urgent need’ are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the warrantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as ‘unreasonable.’ ”

The Dorman Court distinguished a “close running hot pursuit which cannot brook even a delay of minutes” from “an investigation that required a visit to a police central office . .. and thereby facilitated access to the chambers of a judge or commissioner.” The search in Dorman was not upheld on “hot pursuit” grounds. The Court said, at 393:

“[T]he entry after 10 p.m. came some four hours after the offense. This was not a case of hot pursuit unless that term is to be stretched beyond all reasonable meaning. But the ultimate underlying factors were similar to those involved in a case of hot pursuit.”

Instead of “hot pursuit”, the Court justified the entry as an effort to effect the arrest of a named person who had been positively identified as one who had committed a crime of violence.

In United States v. Harris, supra, a payroll delivery was held up; and the getaway car, which was identified and linked to the defendant, was found near Harris’s home, with the engine still warm. Police rapped on the door of Harris’s apartment and identified themselves. The person opening the door resembled one of the robbers. From the opened door, the police observed stacks of coins and a pistol on a table. The Court did not rest its finding on “hot pursuit;” rather it held at pages 80 and 83-84:

“At the moment the door was opened [by the suspect who fit the description of one of the robbers] and the probable loot from the robbery was unveiled, the officers were face to face with prime suspects and concatenately supplied with sufficient probable cause to arrest these suspects.
The search then was a search incident to a lawful arrest... based on probable cause ....”

The facts in the case sub judice clearly established the following: Only the appellant had been tentatively identified as a participant in the robberies; the identity of the second robber was unknown; the information from the female informant placed the appellant in the house on Midwood Avenue, but there was no designation of the second floor apartment as being the apartment of appellant; appellant was arrested outside the house and there was no information at that time suggesting that he had been in the second floor apartment; there was no evidence that a second person was in the apartment other than a “scuffling noise” allegedly heard by Detective Moran and his own “feeling” that someone was there; there was no information to indicate that a second person, if present, was involved in the robberies committed more than 30 hours previously.

We hold that the entry of the police into the apartment was an illegal warrantless intrusion justified neither by the “hot pursuit” doctrine nor any other exigent circumstances.

Appellant urges that the information gained by the illegal police activity should not have been used to provide the factual basis for a probable cause affidavit used to secure a search and seizure warrant for the second floor apartment premises.

Our Court of Appeals in Everhart v. State, 274 Md. 459, 481-482, 337 A. 2d 100, 113 (1975), said:

“The doctrine of the ‘fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search,....
[I]f the defendant established that the evidence resulted from an unlawful search and seizure such evidence cannot be used at all unless the prosecution can convince the trial court that it had an independent origin or that the information gained in the unlawful search did not lead directly or indirectly to the discovery of the challenged evidence.” See also Garrison v. State, 28 Md. App. 257, 345 A. 2d 86 (1975).

In Wilson v. State, 30 Md. App. 242, 248, 351 A. 2d 437, 441 (1976), we said:

“[W]hen information serving as a basis for probable cause was obtained or derived as a result of an illegal search, the doctrine of the ‘fruit of the poisonous tree’ . . . applies to preclude the use of such information as the basis of a search warrant.”

In its affidavit to support its request for a search and seizure warrant, the State included the information concerning the Admiral television set found on the premises; it has offered no evidence to suggest the existence of an independent source for that information. Our own review of the affidavit convinces us that without such information, no probable cause was stated which would justify the issuance of the warrant for the second floor apartment at this address.

The “plain view” doctrine is of no assistance to the State in justifying the admission of the evidence as to the television set which was the result of the initial warrantless search. In order for the doctrine to apply, the observation made by the police must be the result of a prior valid intrusion and the discovery of the evidence in plain view must be inadvertent. Coolidge v. New Hampshire, supra, Brown v. State, 15 Md. App. 584, 292 A. 2d 762 (1972). The State failed to establish the existence of either of these prerequisites.

As our reversal will require a new trial, we shall briefly consider appellant’s other contentions: He suggests 1) that the trial court erred in failing to conduct a separate hearing as to the voluntariness of two inculpatory statements made by him while in police custody, and 2) that the statements were the product of an illegal custodial interrogation. We find no merit in either contention.

Appellant, after his arrest, complained of a leg injury. Detective Moran looked at the leg to make certain there were no serious abrasions, cuts or swelling, and he asked appellant how he hurt his leg. Appellant replied, “You know how I hurt my leg, I jumped out of the window.” Later, while appellant was being escorted to the cell block at the police station, he is alleged to have asked Detective Moran, “Would it help me any if I told you who the second man was?” The Miranda litany had not been given prior to the statements made by the appellant. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

In Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975), this Court pointed out that there are two conditions precedent which must be met before the question of the necessity for the Miranda warnings is considered. These are that the statement must have been made 1) while the defendant was in custody and 2) in response to interrogation. While it is true appellant was in custody, there was no interrogation within the meaning of Cummings. It is clear that the statements in question were not made in response to an interrogation concerning the facts and circumstances of these crimes. The first was made in response to the detective’s effort to determine the cause of appellant’s ailment; the answer, while inculpatory, was obviously voluntary. The second statement was an effort by the appellant to determine whether his cooperation with the police would be beneficial in resolving his difficulties. Neither statement could even remotely be considered coerced self-incrimination. As these statements were not made in response to interrogation, the adequacy of the Miranda warnings or their waiver are irrelevant. There being neither compulsory self-incrimination nor a custodial interrogation, it was unnecessary for the trial court to hold a preliminary hearing out of the presence of the jury. Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968).

Judgments reversed and case remanded for new trial.

Costs to be paid by the Mayor and City Council of Baltimore.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LOYOLA FEDERAL SAVINGS AND LOAN ASSOCIATION et al. v. EDWIN GALANES et ux.
    [No. 93,
    September Term, 1976.]

      Decided November 8, 1976.

    The cause was argued before Thompson, Powers and Melvin, JJ.

      Gary A. Goldstein, with whom were Schimmel & Tatelbaum, P.A., on the brief, for appellants.

      Leonard A. Orman for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Edwin Galanes and Rita Yvette Galanes, his wife, the appellees, obtained a judgment in the Superior Court of Baltimore City, after a jury trial, in the amount of $19,000.00 against Loyola Federal Savings and Loan Association, (Loyola), James H. Jones and Calvin T. Weaver, the appellants. It is contended on appeal: (1) that the action could be maintained only in equity and (2) the evidence was insufficient to support the verdict.

Mr. & Mrs. Galanes, residents of Virginia, began to look for a home in Maryland when Mr. Galanes’ work was transferred to Maryland. Eventually, they contacted King Brook Builders and entered into a contract with them to build their home in Anne Arundel County. The builder referred them to Loyola for the purpose of obtaining a construction loan and permanent loan on their future home. Mr. & Mrs. Galanes advanced the builder from their own funds and credits the sum of $4,000.00 and obtained a loan from Loyola in the amount of $16,000.00. They executed a note and a deed of trust to secure the loan. In addition, Loyola required the Galaneses to enter into a trust agreement with James Jones and Calvin T. Weaver as the named trustees. The agreement recited that it was to be for the benefit of the Galaneses and Loyola; that the $16,000.00 was to be advanced by the trustees in five installments under a schedule of payments when certain portions of the house were completed in accordance with the plans and specifications; and it provided that the improvements must be made in strict compliance with all of the plans and specifications unless changes were authorized in writing by Loyola, the trustees and the owners. The trustees were to be relieved from any liability as to third persons or as to faulty quality of materials and workmanship.

The trust agreement recited that each and every advance would be made only after inspection by Robert O. Murray or his successor. The record indicates that the trustees attended the loan settlement and executed the agreement together with the Galaneses. Loyola did not sign the agreement. The record indicates that the trustees were full-time employees of Loyola and their participation after the execution of the agreement was nil. We note that the five checks covering the installments were drawn on the account of Loyola at the First National Bank, Baltimore, Maryland, and signed by a Mr. Israel, “authorized signature.” The photocopies of the checks in the record are such that we cannot further identify Mr. Israel. These checks total $15,000.00, the extra $1,000.00 being withheld pending completion by the builder of some outside concrete work. The $1,000.00 was later applied to the debt at the request of the Galaneses. No check was introduced into evidence showing any payment to the trustees although Leo J. Will, Vice-President of Loyola and a manager of the Catonsville office, did testify in response to leading questions that the $16,000.00 was placed in a trust fund. None of the inspections was made by Robert O. Murray; there is nothing in the record to show that the trustees chose any successor or successors to him as they had the right to do under the agreement. The record shows that the first, second and fifth inspections were made by Mr. Will, to whom the Galaneses had applied for the loan and with whom they had substantially all of their dealings thereafter. The third and fourth inspections were made by one R. E. Creider, also an employee of Loyola.

All of the exhibits were introduced by stipulation, and it was also stipulated that the checks were made payable to the Galaneses, had to be signed by them, and that Loyola had financed five of nine houses built by King Brook Builders in the particular subdivision. It was stipulated the damages were $19,000.00.

Only two witnesses testified, Rita Yvette Galanes, one of the appellants, and Leo J. Will, Vice-President of Loyola, but it was stipulated that Mr. Galanes’ testimony would be the same as that of his wife. Mrs. Galanes testified that the checks were not given to her but that Loyola delivered them to the builder who brought them to the Galaneses for signature. At the time of the third draw Mrs. Galanes contacted Mr. Will and told him that all of the work that was supposed to have been done before the check was issued had not been completed, and they did not wish to sign the check when “nothing on the specifications of the contract was being followed.” Further, it was obvious to the naked eye that the work was not being done in a professional manner, and that she was on the construction site every day and never saw any person make an inspection. To an inquiry as to what response she received from the bank over her complaint, she replied, “Mr. Will told me that the bank was not responsible for the type of work that was being done. He told me I had to sign the check or the man would never build the house. He also told me that if we didn’t sign the check we would forfeit the house and lose — the bank would foreclose, so we would have lost everything we had.” She went on to add that she called Mr. Will an average of twice a week thereafter complaining that advances were being made prior to the time they were supposed to be under their agreement and that after she couldn’t get satisfaction from Mr. Will, she “... called Mr. Israel’s office. Mr. Israel is the President of all Loyola, I would imagine, and I talked to a secretary, office manager, business manager, I don’t know what he was and I told what was going on in this particular case and they said they would check into it.” She stated that she never heard anything further except that they were checking into it. She further stated that, “When we refused to sign the payment, Mr. Will would say, well, how do you expect them to build your house when you don’t give them the money or he also said, you have to pay him the amount of the money so he can put the roof up on the house across the street and then they get a check from that and then he can continue working on your house.” And further:

“Q. Did he ever do anything or come out to see about the fact that the house was not being — or that the schedule of construction was not being met?
A. Not to my knowledge. No one ever did and that one particular incident, they had poured the basement floor and tiled it and my husband and I went over there to see how the house was coming along that evening and the whole floor had sunk three feet, the whole floor. I called Mr. Will about that because, at that particular time there was another check being issued and I said I don’t think we should give this check out. I said, what guarantee do we have that this floor will be fixed. He said, give it to them, sign the check, sign the money over. How do you expect your house to get built.
Q. What, if anything, did Mr. Will say to you?
A. He told me if I didn’t sign the check the bank would foreclose on it and I would lose everything.
A. The fifth check, when the builder walked in with the fifth check and my husband called Mr. Will at home and said, Mr. Will, we don’t want to sign this check.
Q. Did he say the same thing?
A. He said sign it, certainly. How do you expect your house to get built.
Q. Did he also say he would foreclose if you didn’t sign it?
A. Yes, he did.
Q. And, did you believe him?
A. Yes, 1 did. I really did. It was a terrible experience all the way along.”

She testified that the builder had arranged for them to live in an apartment while the house was being completed but that the gas and electric were turned off and the landlady informed them they would have to get out; whereupon on December 22, they moved into their home which was not completed and after all the money had been paid to the builder. There was no heat in the house at the time they moved in. She testified that they had filed suit against the builder and recovered a judgment which was noncollectable because he had gone out of business soon after they moved into their home. She testified that she never saw Mr. Jones or Mr. Weaver after the day of settlement. She thinks she may have called their office once about her complaints but was not certain.

Mr. Will testified that at the time of the transaction with the Galaneses he was Vice-President of Loyola in charge of the Catonsville office but that he had since retired. He outlined the general procedures on construction loans that payments were made only after proper inspection. Once the bank receives notice that construction had reached a certain stage, “we assign an inspector to go out and inspect the property, to see that the construction had advanced and is completed to that particular stage and, if that is done, then a check ... is delivered to the branch office and, in turn, delivered either directly to the borrower or, if the borrower is not available, then it is given to the builder to take to the borrower.” Under the agreement it was not their (Loyola’s) obligation to inspect the quality of the work but only that various stages were completed. He stated that the Galaneses complained only about a number of small things that needed to be corrected and he had no control over foreclosure and never said anything about that. On cross-examination he testified that the Galaneses were referred to Loyola by Henderson Real Estate Company with whom his office had made numerous loans over a period of years. He testified that King Brook Builders was a new builder as far as he was concerned but that he later found out that Mr. Henderson had some connection with it, although he did not know the exact extent of it. He testified that he had known Mr. Henderson personally for over 20 years. On cross-examination he admitted that it was their obligation not to make a payment until each stage of the schedule of payments was met. He pointed out that the agreement provided that there was no responsibility for the quality of the work and that he did not “recall” saying that the mortgage would be foreclosed if Mr. & Mrs. Galanes did not sign the checks, although admitting that he had seen Mr. & Mrs. Galanes in person and talked with them some on the telephone before all the money had been distributed.

“Q. Okay. Let me finish this question, Mr. Will. You have no recollection, isn’t it true, because of the passage of time, whether or not Mrs. Galanes called you and told you that King Brook was not building the house in accordance with the plans and specifications and had not completed various types of work which were supposed to be completed?
A. I recall that she called me, telephoned me and complained about some of the work. Exactly what it was, I don’t remember. I just can’t remember that far back or just the details because I handled an awful lot of loans, made a lot of inspections all over the County and I can’t pick up every time.”

He stated that there were ten persons working for Loyola at the time who made inspections.

Equity Jurisdiction

The appellants argue strenuously that equity has long had exclusive jurisdiction over trusts. Their argument is well supported by the authorities. The Restatement (Second) of Trusts (1959) states:

§ 197 — “Except as stated in § 198, the remedies of the beneficiary against the trustee are exclusively equitable.”
§ 198 — “(1) If the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment. (2) If the trustee of a chattel is under a duty to transfer it immediately and unconditionally to the beneficiary and in breech of trust fails to transfer it, the beneficiary can maintain an action at law against him.”

The official comment to this section states:

“(e) Liability to pay damages for breach of trust — An action at law cannot be maintained against a trustee for damages for a breach of trust as distinguished from an indebtedness arising out of a breach of trust. Thus, if the trustee negligently injures or destroys the subject matter of a trust, other than money, he is not liable in an action at law.”

To the same effect see Bogert, Trusts and Trustees (2d. Ed.), §§ 867, 870. The Maryland cases support these texts. In the early case of Nelson v. Howard, 5 Md. 327 (1854), the Court held that a trustee could be proceeded against in law after the trustee had stated his account and there was a liquidated sum shown to be due the plaintiff in which the Court said at 331, 332:

“There can be no doubt in this State as to the principles of law which must govern the decision of this case. It is unquestionably true, that to enable the plaintiff to recover in this action, he must show that there had been an adjustment of the accounts between the parties and a promise to pay the amount ascertained to be due. Unless he can do this he has no standing in a court of law. On the other hand, if he can make out these facts, there is no difficulty in regard to the jurisdiction of a court of law. So long as the amount of indebtedness was undecided and an absence of a promise to pay, the matter remained one only cognizable by a court of equity; but whenever these facts are established as between the parties, a paramount legal title results to the promise, which enables him to proceed in a court of law.”

In Cockey v. Leister, 12 Md. 124 (1858), the Court carefully distinguished Nelson, supra, in a case where the liability in a liquidated amount had not been shown:

“In Nelson v. Howard, 5 Md. 327, a suit at law was maintained against the executor of a trustee, but the trust had been closed, and the trustee had promised to pay an ascertained balance due the cestui que trust.
“It follows, from the views here expressed, that the court erred in granting the plaintiffs prayer, because there was no evidence to show that the defendant was liable in the attachment — the proof offered having had relation only to his possession of funds as trustee — and, as to the defendant’s prayers, if he was liable as garnishee, he was only chargeable to the extent of Nicholas Leister’s interest, as ascertained in equity, and this had not been determined.” Id. at 131,132.

Although there are many recent cases which indicate that equity courts have jurisdiction over trusts, we have found no recent case which spells out so clearly that the jurisdiction in equity is exclusive where there is no definite sum shown to be due. See for example, Sullivan v. Mosner, 266 Md. 479, 295 A. 2d 482 (1972), Salem Church v. Numsen, 191 Md. 43, 59 A. 2d 757 (1948); Ghingher v. O’Connell, 165 Md. 267, 167 A. 184 (1933). See also Maryland Rules V70 through V84, Estates and Trusts Article § 14-101 and § 14-301.

The appellants argue forceably and we think correctly that subjecting trustees to jury findings of liability would discourage persons from accepting such responsibilities and would doubtless make it more difficult to obtain trustees to execute trusts. We note in the instant case, however, that Loyola was not a trustee. The trust agreement recited that it was made for Loyola’s and the owner’s benefit but the trustees were Messrs. Jones and Weaver. Loyola’s liability is predicated upon different grounds; i.e., what occurred after the funds were transferred to the Galaneses. See Restatement (Second) of Trusts § 281 (1959).

Appellants argue we cannot consider Loyola’s liability separately from that of the trustees because the issue was not so presented to the trial court. We do not see it that way. The appellants moved to transfer the case to a court of equity prior to trial. The trial court ruled that a court of law had jurisdiction. Although we find him in error as to the trustees, we find no error in his holding that Loyola was subject to a suit at law. A trial judge can be right for the wrong reason. Robinson v. State, 17 Md. App. 451, 302 A.2d 659 (1973), Jones v. Endslow, 23 Md. App. 578, 328 A. 2d 339 (1974).

Sufficiency of the Evidence

Appellants contend that their motion for a directed verdict or for a judgment N.O.V. should have been granted. Initially, we point out that in reviewing the evidence we must assume the truth of all evidence which tends to support the verdict. Smith v. Bernfeld, 226 Md. 400, 174 A. 2d 53 (1961). And, of course, the motion should be denied if there is any legally relevant and competent evidence, however slight, to support the verdict. Jacobson v. Julian, 246 Md. 549, 229 A. 2d 108 (1967). The appellants argue that the evidence fails to show the trustees’ actions resulted from an act committed in bad faith or intentionally or “with reckless indifference to the interest of the beneficiary.” Restatement (Second) of Trusts § 222, comment (a); or that under Sullivan v. Mosner, supra, the appellants’ conduct should be decided in accordance with paragraph 6 of the agreement which provides:

“6. That the Trustees shall not be held liable for any loss to the funds deposited with them unless such loss be caused by their or either of their personal gross neglect or willful malfeasance.”

Assuming without deciding Loyola, not a trustee, would be governed by the same principles which determine the liability of a trustee, we think the evidence amply supports the jury finding that Loyola’s conduct was in bad faith, intentional, or recklessly indifferent to the interest of the Galaneses.

There was evidence from Mr. Will, whose testimony appeared evasive, that he was a long-time business acquaintance of Mr. Henderson, the moving factor in the relationship of King Brook Builders with Loyola. There was some evidence that Mr. Will was aware that the building corporation was in some financial difficulty when he advised Mrs. Galanes that she had to endorse the check so that the builder would have money to put a roof on the house across the street and thus get money to complete her house. It is stipulated the house was not completed at the time of Mr. Will’s final inspection of the property. There was testimony that Mr. Will used threats of foreclosure to coerce the appellees into endorsing checks which Loyola had already delivered to the builder directly, without any authorization from the Galaneses. Will, himself, testified that he had no authority to make this statement and in fact had nothing to do with initiating foreclosure proceedings. Mrs. Galanes testified that the appellees endorsed the checks over to the builder only because of these statements from Loyola. We think the Galaneses had the right to rely on these statements of their lender, who had apparently assumed all of the duties of the trustees. Under the circumstances, we think Mr. Will’s representations that Loyola would foreclose, knowing as he did that the various stages of construction were not completed, could be found to be fraudulent. An action for fraud can be predicated on statements which are expressions promissory in nature, if there is no present intention to keep the promise. Levin v. Singer, 227 Md. 47, 63, 175 A. 2d 423 (1961).

Judgment, affirmed as to Loyola Federal Savings and Loan Association.

Judgment reversed as to James H. Jones and Calvin T. Weaver.

Loyola to pay costs.

      . We do not consider that the stipulation made the sum definite for the purpose of considering jurisdiction of the law court.

      . The jury was instructed the plaintiffs (appellees) could not recover unless the defendants (appellants) were guilty of bad faith in making the inspections.

      . Mr. Will, in his testimony, did not recall making the final inspection. The signature on the final report, however, appears to be identical with those on the first two reports which were admittedly Mr. Will’s.


author: Gilbert, C. J.,

text:
    MARYLAND METALS, INC. v. ROY HARBAUGH et al.
    [No. 96,
    September Term, 1976.]

      Decided. November 8, 1976.

    The cause was argued before Gilbert, C. J., and Morton and Mason, JJ.

      William P. Young, Jr., for appellant.

      John H. Umer, with whom were Byron, Moylan & Umer on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

Properly before us, this case would have presented the interesting question of whether the appellant, Maryland Metals, Inc., “is engaged in the ‘... recycling of automotive components’ ” or operates a “junkyard” as that term is defined by Washington County Zoning Ordinance, art. 28, § 28.35. The issue, however, is not before us for the reasons stated infra.

In 1973, Washington County adopted a zoning ordinance. One effect of the ordinance was to place the business of the appellant in a residential area. Thus, the appellant’s business was, by operation of law, converted into a non-conforming use. Appellant continued operation of its “junkyard.”

Desirous of expanding its operation “by the installation of an automatic shredding plant and motor breaking machine,” the appellant made application on October 3, 1974, to the Board of Zoning Appeals for permission to do so. The matter was heard by the Board in late October 1974, and the application was denied on November 27, 1974, on the basis that the zoning ordinance proscribed the expansion of a “junkyard,” notwithstanding the Board’s finding “.. . [t]hat the proposed additions would greatly facilitate recycling of automotive components by breaking down metals as demanded by the market, resulting in a more efficient, less wasteful operation.”

Disappointed by the Board’s denial, the appellant sought relief in the Circuit Court for Washington County in the form of an appeal. In that tribunal, the appellant met with no more success than it had before the Board. The judge of the circuit court heard argument, viewed the property, and later wrote an opinion affirming the Board. The opinion and order thereon was filed on November 5, 1975. Patently, under Md. Rule 1012 a, the appellant had thirty days from November 5, 1975, to appeal to this Court. No appeal within that time frame was noted, however.

On December 19, 1975, two full weeks after the expiration of the time in which an appeal could be properly noted, the appellant, purportedly pursuant to Md. Rule 625 a, filed a “Motion to Set Aside Judgment.” The appellant contended, in the “Motion” that, at the hearing of October 24, 1975, he had orally requested permission to take additional testimony, but that the hearing judge “.. . did not deny . . . [appellant’s] motion during the hearing and its [the court’s] order does not dispose of the [oral] motion.” Appellant further requested the hearing court “. .. to exercise its authority under . .. Rule 625 a and set aside .. .” the judgment affirming the Board on the ground that “[t]he Court failed to furnish the .. . [appellant’s] attorney with a copy of its opinion and order, contrary to the long-established rule in this County that the Court furnishes the opinion to attorneys for each side.” Appellant charged that the “. .. failure to furnish a copy to [appellant’s] counsel was a ‘mistake or irregularity’ ” within the meaning of those words as employed in Md. Rule 625 a.

Appellees responded that the oral motion to take additional testimony was denied orally. Appellees further asserted that the “. . . failure to furnish a copy of the Court Order to counsel of record is not a ‘mistake or irregularity’ . . . .”

The hearing judge then passed an order dated January 21, 1976, and filed the next day, in which it recited:

“WHEREAS this Court handed down a decision in this case on November 5,1975 and WHEREAS through an office error, a copy of the decision was not mailed as is customarily done in this County, and
WHEREAS, time for appeal lapsed before counsel in the case had learned of the decision,
NOW, THEREFORE, at the request of the petitioner, the plaintiff, this Court hereby strikes the order of November 5, 1975, and will hand down the same order as of this date for the purpose of the petitioner to appeal (if this power still remains in this Court).”

An appeal was then noted to this Court within thirty days of the January order.

The appellees have moved in their brief, under Md. Rule 1036 d, to dismiss the appeal as not timely. Md. Rule 1035 b 3.

We infer from the hearing judge’s use of the words “... if this power still remains in this Court” that the judge had reservations about his authority to grant the motion. Both Pumphrey v. Grapes, 215 Md. 573, 138 A. 2d 916 (1958) and Baltimore Luggage Co. v. Ligon, 208 Md. 406, 118 A. 2d 665 (1955) indicate that the court did not possess the power it exercised.

In Pumphrey, supra, a trial judge granted a judgment N.O.V. and filed an order with the court clerk. He also supplied the clerk with copies of his order for counsel. One attorney did not receive the copy intended for him and did not learn that the order had been filed until after the appeal time had expired. In affirming the lower court’s denial of that counsel’s motion to strike out the judgment on the basis of Rule 625 a, the court said:

“In the absence of a general or local rule of court, it is almost universally held that there is no requirement that notice be given. . . . The obligation to follow and consult the docket rests upon counsel, who are charged with notice. ... It is not shown that there is any applicable local rule in effect in Howard County. The most that can be claimed is that under the local practice it is customary to supply copies of opinions and orders to counsel. The deputy clerk testified that he usually did this by ‘Handing it to them in person. Rarely, I go out and deliver them. . ..’ There was no practice of mailing copies or giving formal notice.. .. We think there was no obligation upon the clerk to serve the copy, and the failure of counsel to learn of the court’s action and the entry of the judgment is not chargeable to him [the clerk] under the circumstances.” 215 Md. at 576-77, 138 A. 2d at 918 (Emphasis supplied). (Citations omitted).

A semantic problem exists in applying the above language to the instant case. In his order, the hearing judge vacated the November 5, 1975, order because “. . . a copy of the decision was not mailed as is customarily done in this county.” (Emphasis supplied). The Pumphrey Court held that “[t]he most that can be claimed is that under the local practice it is customary to supply copies of opinions and orders to counsel.” 215 Md. at 576, 138 A. 2d at 918 (Emphasis supplied). In Pumphrey, the Court had before it testimony showing the procedure followed by the clerk in delivering opinions and orders. The Court noted that “[t]here was no practice of mailing copies or giving formal notice.” In the case presently before us, no testimony was taken on the motion to set aside the judgment. We are left with the motion, the answer thereto, and the hearing judge’s statement “. .. the decision was not mailed as is customarily done in this County.”

We glean from Pumphrey that custom alone falls short of establishing a “mistake or irregularity” under Rule 625 a unless there is a local or general rule authorizing or sanctioning the “custom.”

The Court, in Baltimore Luggage, supra, went even further. There it said that notwithstanding a trial judge’s statement that he “.. . was going to enter a judgment nisi,” 208 Md. at 421, 118 A. 2d at 673, counsel were “. .. not entitled, as of right, to rely entirely on the judge’s indicated purpose.” 208 Md. at 421, 118 A. 2d at 673.

The Court stated:

“It is settled that a party to litigation, over whom the court has obtained jurisdiction, is charged with the duty of keeping aware of what actually occurs in the case and is affected with notice of all subsequent proceedings and that his actual knowledge is immaterial.” 208 Md. at 421-22, 118 A. 2d at 673

In Baltimore Luggage, supra, the trial court, in order to accommodate the appellant, amended the docket in an effort to avoid prejudicing the right of the luggage company to appeal, which right had expired because of counsel’s reliance upon the Court’s statement that it would enter the order nisi, and counsel’s failure to observe that the court actually entered a final judgment.

When the matter was decided by the Court of Appeals, it pointed out, rather strongly we think, that:

“. .. [T]he judge was attempting to extend the time for appeal which, of course, he could not do. Thus, although the docket mechanically has been altered, the appellant is in the same legal position as it was on the day the appeal was entered .... [That] was more than thirty days after the entry of the final judgment. . . and the luggage company at that time had no right of appeal.” 208 Md. at 423, 118 A. 2d at 674.

In the practice of law, a lawyer is charged with the responsibility of knowing what is entered upon the dockets, from time to time, in the case in which he is counsel. It is his duty to follow the dockets so as to keep himself abreast of the happenings in his case, and absent a local or general rule entitling counsel to rely upon the clerk for notice of particular entries on the docket, counsel will not be heard to exclaim that he was unaware of an entry. Put in another more graphic way, the buck stops with the attorney’s appearance as counsel of record.

Lest there be any misconception that an attorney’s ignorance of docket entries is not a “mistake or irregularity” in the Md. Rule 625 a sense, the Court of Appeals, in a host of cases, has laid that idea to rest. Cohen v. Investors Funding Corp., 267 Md. 537, 541, 298 A. 2d 154, 156 (1973); Ventresca v. Weaver Bros., 266 Md. 398, 407, 292 A. 2d 656, 661 (1972); Maggin v. Stevens, 266 Md. 14, 18, 291 A. 2d 440, 442 (1972); Penn Central v. Buffalo Spring, 260 Md. 576, 582, 273 A. 2d 97, 100 (1971); Mutual Benefit Society v. Haywood, 257 Md. 538, 541, 263 A. 2d 868, 870 (1970); Grantham v. Prince George’s Co., 251 Md. 28, 36, 246 A. 2d 548, 552 (1968); Tasea Investment Corp. v. Dale, 222 Md. 474, 479, 160 A. 2d 920, 923 (1960); Pumphrey v. Grapes, supra; and Baltimore Luggage v. Ligon, supra.

As we see it, appellant’s counsel had no right, in the instant case, to rely upon a supposed custom of the court in mailing copies of orders to counsel. One of the very purposes of the rule relative to counsel’s duty to follow the docket is to assure counsel that neither he nor his client will be misled or shortchanged by the failure of some court, or court employee, to follow custom as distinguished from a rule of court.

Having decided that the court’s failure to notify counsel of its order was neither a “mistake” nor an “irregularity,” it logically follows that the court, under the circumstances of this case, was without authority to strike the judgment and then enter a new judgment so as to make an otherwise untimely appeal timely. The rationale of the Baltimore Luggage case clearly is to the contrary.

We hold the appeal entered in the case sub judice was untimely and must be dismissed.

If it be of any solace to the appellant, we observe that the Washington County Zoning ordinance provides in pertinent part:

“28.35 JUNK YARD: Any area where waste, discarded or salvaged materials are bought, sold, exchanged, baled, parked, stored, disassembled or handled, including auto wrecking yards, house wrecking yards, used lumber yards, and places or yards for storage of salvaged house wrecking and structural steel materials and equipment, but not including areas where such uses are conducted entirely within a completely enclosed building and not including pawnshops and establishments for the sale, purchase or storage of used furniture and household equipment, used cars in operable condition, salvaged machinery and the processing of used, discarded or salvaged material as part of manufacturing operations.”

Our review of the record convinces us that the evidence establishes that from the date of the adoption of the county zoning ordinance to the time of hearing before the Board, the county considered the appellant’s business as a junkyard. The record shows that in the written communications by the county to the appellant, the county invariably referred to the appellant’s business with such characterization. If appellant, prior to the instant case, sought to alter that classification, there is nothing in the record so indicating.

The testimony further demonstrated that while the business currently demolishes and processes sixty to sixty-five cars per day, allowance of the expansion will permit an increase in that number of cars to between two hundred and two hundred fifty cars per day, an increase of at least one hundred forty cars per day.

There was conflicting evidence before the Board as to whether the appellant’s business was that of manufacturing and hence without the definition of junkyard as defined by the ordinance or a junkyard and business clearly within the definitions. The Board decided that the business of the appellant was a junkyard. We are persuaded that the evidence was such as to make the Board’s finding fairly debatable. Thus, since it was fairly debatable, the courts are not at liberty to substitute their judgment on the evidence for the judgment of the Board. We think the hearing court was correct when it affirmed the Board. Luxmanor Citizens v. Burkart, 266 Md. 631, 296 A. 2d 403 (1972); Neuman v. City of Baltimore, 23 Md. App. 13, 325 A. 2d 146 (1974).

Appeal dismissed.

Costs to be paid by appellant.

      . While the appellant objects to the application of the word “junkyard” to its operation, we note that in October 1973, a letter to the appellant from the Washington County Planning and Zoning Commission contained the following sentence:
      “Your business, designated a junkyard and located at 449 Antietam Drive, is in a Residential, Suburban District and is a non-conforming use.”
      No objection, at that time, seems to have been interposed by appellant to its business being characterized as a “junkyard.”

      . The Rule provides:
      “Whenever an appeal to this Court is permitted by law, the order for appeal shall be filed within thirty days from the date of the judgment appealed from except as provided in sections c. and d. of this Rule.”
      Neither § c., which concerns appeals from Orphans’ Court, nor § d., criminal appeals after a denial of a motion for a new trial, are here applicable.

      . Prom the use of the phrase “Counsel of record,” we infer that neither side received a copy of the court’s order from the court itself.

      . The question of the alleged oral motion to take additional testimony was not answered by the hearing judge nor was that issue raised before us. We deem it to have been abandoned.

      . The Fourth Judicial Circuit, of which Washington County is a part, has no rules prescribing a procedure for distributing copies of court orders or opinions to counsel.


author: Powers, J.,

text:
    HELEN T. BORNE v. LEWIS E. BORNE, JR.
    [No. 98,
    September Term, 1976.]

      Decided November 8, 1976.

      The cause was argued before Thompson, Powers and Melvin, JJ.

      John P. Corderman for appellant.

      David K. Poole, Jr. and A. Martin Palmer, Jr. for appellee.
   Powers, J.,

delivered the opinion of the Court.

By an amended decree signed by Judge Paul Ottinger, the Circuit Court for Washington County granted to Lewis E. Borne, Jr., an absolute divorce from Helen T. Borne, dismissed Mrs. Borne’s cross-bill, and denied her petition to reserve the right to award alimony later.

In her appeal from that decree Mrs. Borne argues that the factual findings of the trial judge concerning the appellant’s disposition to commit adultery were clearly erroneous, and that the evidence in the record does not meet the irreducible minimum standard of proof necessary to substantiate a claim of adultery.

This litigation began on 21 January 1974 when Mr. Borne filed a bill of complaint alleging that the parties were residents of Washington County, that they were married in 1949, that their two children were emancipated, and that Mrs. Borne had committed adultery. He prayed for an absolute divorce. Mrs. Borne answered, and denied the allegation of adultery. Mrs. Borne filed a “Cross-Bill of Complaint” in which she alleged that her husband deserted and abandoned her on 4 January 1972, and prayed that she be granted an absolute divorce, and reasonable counsel fees. The husband’s answer to the cross-bill denied its essential allegations.

With leave of court Mr. Borne filed a supplemental complaint on 7 January 1975, alleging that the parties had lived separate and apart consecutively, without cohabitation, for a period of three years. He again prayed for an absolute divorce. The wife answered, admitting the allegations of the supplemental complaint, and requesting the court to reserve jurisdiction over alimony in any decree passed.

Evidence on all issues was taken before the chancellor on 25 November 1975. In a Memorandum Opinion filed with the decree the chancellor stated that Mr. Borne did in fact move out of the marital home on 4 January 1972, and that the parties had not cohabited since that time. The opinion then said:

“There was a great deal of convincing testimony offered that, beginning in September of 1973, a man named Glenn Bitner began to visit Mrs. Borne at her home at 328 Nottingham Road regularly, usually in the evening, and frequently remained until midnight or thereafter. This is not disputed; in fact, it was admitted by both Mrs. Borne and the alleged paramour Bitner. This testimony, of course, establishes the opportunity to commit adultery. Mrs. Borne’s attorney argues, however, that there was no evidence of inclination. The Court disagrees. Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court oelieves this testimony and finds therefore that there was both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner, after the separation, and that such adultery has not been condoned by Mr. Borne, nor has there been any reconciliation between the parties since this adultery was committed. Mr. Borne is therefore entitled to a Divorce A Vinculo Matrimonii on the ground of adultery and, of course, he is also so entitled on the other ground of three years continuous separation without cohabitation.
“The Court will award Mr. Borne a Divorce A Vinculo Matrimonii. The Cross-Bill of Mrs. Borne will be dismissed and the request to reserve the right to award alimony at a later date will be denied.”

Preliminarily we note that the decree itself grants the divorce, but does not state a ground. It is often said that, “The opinion does not constitute a part of the decree, and the appeal, of course, is only from the decree.” Brenneman v. Roth, 212 Md. 491, 497, 130 A. 2d 301 (1957); Holmes v. Sharretts, 228 Md. 358, 374, 180 A. 2d 302 (1962). The Court of Appeals has also said, however, that, “Although an appeal is from the action of the court, not from the opinion, the opinion may be looked to for the establishing of matters therein set forth.” Scherr v. Braun, 211 Md. 553, 560-61, 128 A. 2d 388 (1957).

Looking to the opinion to establish the chancellor’s reasons for the decree, we consider it evident that the culpatory ground of adultery was one ground for the divorce, whether or not non-culpatory separation for three years was also a ground. Indications in the decree that the court found Mrs. Borne to be a wrongdoer were dismissal of her cross-bill, and denial of her request to reserve the question of alimony.

We have carefully reviewed the evidence upon which the chancellor based his finding of adultery. In the absence of direct proof, of which, as in most such cases, there was none, adultery can be found only by inference. The process of drawing inferences is usually approached by the courts on a two step basis. One step requires that there be evidence to prove that the spouse and the companion were together at a time and place and under circumstances which provided them an opportunity to engage in sexual intercourse, should they be so disposed.

As the chancellor noted in his opinion, the;.- was a great deal of testimony that established that Mrs. Borne and Mr. Bitner, the alleged paramour, on several occasions had the opportunity to commit adultery. It is true that an opportunity must be shown to have existed before a court can be asked to find, by inference, that the man and woman who had the opportunity did in fact commit adultery. The showing of a mere opportunity, although a prerequisite to circumstantial proof of adultery, has little or no evidentiary significance in itself. Countless opportunities, in the sense of an occasion when a man and a woman are present temporarily at a place where no one else is present, occur every day. Ordinarily, such an opportunity means nothing. We must assume respectability and virtue, unless there is evidence to show otherwise.

The other step in the inferential process requires evidence that both the man and the woman in question have an adulterous disposition — that it is the inclination of each one to commit adultery when there is an opportunity to do so. Steinla v. Steinla, 178 Md. 367, 13 A. 2d 534 (1940).

The finding in this case that both Mrs. Borne and Mr. Bitner had the inclination or disposition to commit adultery, and the inference that they did in fact do so, was based entirely upon evidence which the chancellor summarized in these words:

“Mr. Borne and at least one of his witnesses testified that on some of the occasions when Mrs. Borne came to the front door to turn the light on for Bitner when he was leaving, that she (the Defendant) kissed Bitner and the Court believes this testimony and finds therefore that there was both opportunity and inclination. The Court finds further that Mrs. Borne was guilty of adultery with Bitner * * *.”

An error in recollection of the testimony may have contributed to the chancellor’s finding of inclination. Review of the record shows that it was not “some of the occasions”, but on only one occasion that there was evidence of a kiss, when Mrs. Borne turned on the porch light for Mr. Bitner when he was leaving. No witness said that “she kissed Bitner.” Chester A. Herbert, who was watching with Mr. Borne, said, “I saw them kiss goodnight.” Mr. Borne, whom we would expect to be acutely observant of details, said, “ * * * he kissed her goodnight and left * *

While one goodnight kiss is the most damning evidence against Mrs. Borne, we have reviewed all of the testimony which bears on her relationship with Mr. Bitner. In substance, the testimony showed that in September, possibly August, 1973, more than 18 months after Mr. Borne left the home, a Mr. Glen Bitner began to call upon Mrs. Borne. Mr. Bitner, a widower since 1968, was employed as a pharmacist at the Western Maryland Center, a State Hospital where Mrs. Borne was employed as a registered nurse. They had known each other for several years.

Mr. Borne, sometimes alone, sometimes with one or another of several friends, observed the house on numerous occasions from September 1973 to January 1974, when he filed suit. The combined testimony of Mr. Borne, Chester A. Herbert, Roy Trovinger, Eileen Herbert (his sister), and Edward J. Weneck, as well as the testimony given by Mrs. Borne, Mr. Bitner, and Madeline Light, a next door neighbor called as a witness by Mrs. Borne, produced not a single conflict of fact. The testimony described some half dozen occasions (and the alleged wrongdoers freely confirmed that there were more) when Mr. Bitner came by car to Mrs. Borne’s house, parked in a conspicuous place, entered the house, and later left. The hours of these visits were generally from around 9:00 P.M. to a little before or a little after midnight. Once or twice he arrived around dinner time, and stayed only an hour or so. They attended together a Western Maryland Center Christmas party. On a few occasions they had a meal together at the clubhouse of the Potomac Fish and Game Club. When Mrs. Borne went on a trip to visit relatives, Mr. Bitner took her and her luggage to the airport. Both Mrs. Borne and Mr. Bitner testified that their relationship was one of friendship or companionship. Each said that they had not engaged in sexual relations.

There was no suggestion in the evidence of secretiveness or of any effort to conceal their activities. There was no suggestion, by evidence of lights being turned on or off, or otherwise, of movement of the occupants into areas of the house less appropriate to an innocent social visit. The one occasion upon which Mr. Borne said Mr. Bitner kissed her goodnight and left, was not described as involving any undue familiarity, any indiscretion, or any disregard of propriety. The witnesses gave it no sexual connotation.

In short, we hold that the chancellor’s finding that Mrs. Borne displayed a disposition to commit adultery, and his finding by inference that she did commit adultery, were not justified by the evidence, and were clearly erroneous.

In Steinla v. Steinla, 178 Md. 367, 13 A. 2d 534 (1940), the Court of Appeals, citing many cases, said of adultery, at 373-74:

“Because of the secret and clandestine nature of the offence, it is rarely shown by direct proof, but must of necessity in most cases be proved by circumstantial evidence. Because of the stigma which the finding carries, and the possibilities of error inherent in proof of that nature, the general rule is that the quality of evidence required to establish it must be high, and its quantum sufficient to satisfy a reasonable mind of the truth of the charge. It need not be proved beyond a reasonable doubt, except where it is the subject of a criminal prosecution, nevertheless, to justify such a finding, the evidence must be such as to exclude any reasonable possibility of innocence. [Citations omitted.] It must go beyond proof of facts merely justifying suspicion, and show facts inconsistent with innocence. [Citations omitted.]”

Again in Dougherty v. Dougherty, 187 Md. 21, 48 A. 2d 451 (1946), the Court of Appeals said, at 27-28:

“It is an established rule that the burden of proof in a suit for divorce is upon the complainant, and where adultery is charged the evidence must establish affirmatively that the alleged offense was committed. It is not necessary, however, to establish the charge of adultery by direct evidence of the commission of the act, for because of the clandestine nature of the offense it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses. The offense may be inferred from the circumstances if the inference is the only natural and logical deduction to be drawn therefrom. To prove adultery, the circumstantial evidence must clearly establish (1) a disposition on the part of the defendant and the paramour to commit adultery, and (2) an opportunity to commit the offense. After considering these and all other facts and circumstances in the case, the court then determines whether the evidence would convince an unprejudiced and cautious person of the guilt of the defendant. The permanent consequences of adultery are so injurious to the parties that the court will not accept as sufficient proof of its commission anything less than evidence so clear, satisfactory and convincing as to raise in the mind of a reasonable and unprejudiced person a natural inference of guilt. We do not consider the use of circumstantial evidence harsh or unreasonable, for it applies only to those who, by open disregard of the moral and social conventions and decencies of life, have shown themselves indifferent both to their marital obligations and to the opinion of others. [Citations omitted.]”

And mere association is not eough, as the Court of Appeals explained in Hockman v. Hockman, 187 Md. 340, 50 A. 2d 136 (1946), when it said, at 344:

“The law is clear that the charge of adultery in a suit for divorce may be established without direct evidence of the commission of the act. It is rarely possible to obtain evidence of its commission by the testimony of eyewitnesses. In considering circumstantial evidence, however, the chancellor should exercise care and circumspection and should not hold that the offense has been committed except upon evidence so clear and satisfactory that it would convince a reasonable and unprejudiced man of the guilt of the accused. Sterling v. Sterling, 177 Md. 683, 9 A. 2d 214; Renner v. Renner, 177 Md. 689, 12 A. 2d 195, 127 A.L.R. 674. The circumstantial evidence required to prove the charge of adultery must show (1) a disposition of the defendant to commit it, and (2) an opportunity to commit it. The mere association of a man and a woman, however frequent and extended it may be, is not of itself sufficient to prove the charge of adultery. As we said in Renner v. Renner, 177 Md. 689, 12 A. 2d 195, 127 A.L.R. 674, a man and a woman may be brought together daily for the transaction of business, or may live in the same house, or may be seen frequently in each other’s company, but the offense is not proved by any such circumstances unless there is some evidence of conduct or speech indicating an adulterous disposition.”

The Court said in Smith v. Smith, 225 Md. 282, 170 A. 2d 195 (1961), at 286:

“Something more than mere suspicion or indiscretion is necessary to overcome the presumption of innocence. [Citations omitted.] The circumstances must be such as to lead a reasonable and just man to the conclusion of misconduct, although adverse inferences may be drawn from evidence of disposition and opportunity.”

Particularly applicable to the facts in the case before us is what Judge Oppenheimer said for the Court of Appeals in Laccetti v. Laccetti, 245 Md. 97, 225 A. 2d 266 (1967), at 103-04:

“The rule that to support a finding of adultery there must be evidence of disposition as well as of opportunity is not based on legal naivete. Rather, it is an acknowledgment of judicial limitations. Absent the searchlight of evidentiary facts, the law recognizes the infinite variations in personalities whose interplay is unpredictable. Even within the framework of constant physical proximity, without some evidence of inclination, the relationship of a man and woman can only be a matter of speculation; in the range of those relationships, even innocence is possible.”

For similar expressions of the general rule see Patzschke v. Patzschke, 249 Md. 53, 238 A. 2d 119 (1968); Matakieff v. Matakieff, 246 Md. 23, 226 A. 2d 887 (1967); Riley v. Riley, 239 Md. 363, 211 A. 2d 748 (1965); Abare v. Abare, 221 Md. 445, 157 A. 2d 427 (1960); and Pekar v. Pekar, 188 Md. 360, 52 A. 2d 468 (1947).

Among the numerous other cases in which the rule has been applied to determine whether the evidence showed a disposition to commit adultery are Pontorno v. Pontorno, 257 Md. 576, 263 A. 2d 820 (1970); Breault v. Breault, 250 Md. 173, 242 A. 2d 116 (1968); Blankenship v. Blankenship, 239 Md. 498, 212 A. 2d 294 (1965); Oliver v. Oliver, 217 Md. 222, 140 A. 2d 908 (1958); Lickle v. Lickle, 188 Md. 403, 52 A. 2d 910 (1947); Stevens v. Stevens, 186 Md. 612, 47 A. 2d 752 (1946); Schriver v. Schriver, 185 Md. 227, 44 A. 2d 479 (1945); Gosman v. Gosman, 19 Md. App. 66, 309 A. 2d 34 (1973); Deckman v. Deckman, 15 Md. App. 553, 292 A. 2d 112 (1972); and Barnes v. Barnes, 14 Md. App. 638, 287 A. 2d 808 (1972).

We have said that the finding of adultery was clearly erroneous. If the decree simply granted a divorce to Mr. Borne on that ground, it would have to be reversed. As we noted earlier, however, the decree did not specify a ground. The chancellor’s opinion stated that Mr. Borne was entitled to a divorce on both grounds. When only one ground is alleged in a complaint, and a divorce is granted, it is unnecessary for the decree to state the ground. When more than one ground is alleged, however, it is desirable that the decree specify the ground upon which the divorce is granted. This is especially true for obvious reasons when one ground is culpatory and one is non-culpatory.

We reverse the decree insofar as it grants a divorce on the ground of adultery, and we affirm the decree insofar as it grants a divorce on the ground that the parties have lived separate and apart without any cohabitation and without interruption for three years. We vacate that part of the decree which denies the petition of the wife to reserve the right to award alimony later. That part of the decree which dismisses the wife’s cross-bill was not questioned in this appeal, and must stand. That dismissal does not, however, constitute a finding of fault on her part.

On remand the chancellor shall reconsider, in the light of what we have said in this opinion, the request to reserve alimony. See Flanagan v. Flanagan, 270 Md. 335, 311 A. 2d 407 (1973). He shall then enter an amended decree in conformity with this opinion, and with such provision regarding alimony as he shall then deem appropriate.

Decree affirmed in part and reversed in part.

Case remanded for further proceedings in accordance vaith this opinion.

Appellee to pay costs.

      . The chancellor noted that the undisputed facts showed that Mr. Borne left the home. There appears to have been no contention or evidence that the desertion was constructively attributable to the wife. She would have been entitled to a divorce on the ground of desertion, Binder v. Binder, 16 Md. App. 404, 408, 297 A. 2d 298 (1972), unless barred by the doctrine of recrimination. Proof of adultery by her would constitute recrimination. But culpatory grounds for absolute divorce are of equal magnitude before the law, and Maryland does not recognize the doctrine of comparative rectitude, Courson v. Courson, 208 Md. 171, 177-78, 117 A. 2d 850 (1955); Matakieff v. Matakieff, 246 Md. 23, 35, 226 A. 2d 887 (1967); and Blumenthal v. Blumenthal, 258 Md. 534, 540, 266 A. 2d 337 (1970). Mr. Borne’s desertion of his wife would therefore constitute an effective recriminatory defense against his allegation of adultery.


author: Moore, J.,

text:
    WILLIAM D. PERRYMAN v. SUBURBAN DEVELOPMENT CORPORATION, Assignee
    [No. 129,
    September Term, 1976.]

      Decided November 8, 1976.

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

      Thomas F. Muid, with whom were Muid, Muid, Munday & Heinze on the brief, for appellant.

      Browne L. Kooken, with whom were Dukes & Troese on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The issue presented for decision is whether, as contended by appellant, the chancellor erroneously vacated and set aside decrees foreclosing rights of redemption in two parcels of real property in Charles County purchased by appellant at a public tax sale. The trial court acted pursuant to the provisions of Rule 625 a. of the Maryland Rules of Procedure pertaining to revisory power over judgments. It is our conclusion that the decrees were conclusive under Art. 81, § 113, Annotated Code of Maryland (1957, 1975 Repl. Vol.), which provides that no final decree rendered pursuant to Art. 81, subtitle Foreclosure of Rights of Redemption by Equity Suits, may be reopened except for lack of jurisdiction or fraud in the conduct of the proceedings to foreclose; and that the statute does not permit the application of the revisory power conferred by Rule 625 a. Accordingly, we reverse.

I

On May 22,1973, the County Treasurer of Charles County sold to appellant, William D. Perryman, two parcels of land and improvements at a public sale instituted for nonpayment of taxes. The lots were located in a subdivision known as Clifton-on-the-Potomac and, in the certificates of sale, were described respectively as Lot 18, Block C and Lot 22, Block A. Lot 18 was sold for $1,600 and Lot 22 for $3,800. The respective tax arrearages were $248.36 and $312.16.

Almost two years later, on May 21, 1975, Mr. Perryman filed a bill of complaint in the Circuit Court for Charles County to foreclose the rights of redemption. Annexed to the bill of complaint were certificates of sale and an Affidavit of Search. The named defendants were, in each instance, (a) the owners of record, (b) the original grantors as the secured parties under purchase money deeds of trust and as the payees of the deeds of trust notes, and (c) the co-trustees named in the respective deeds of trust. With respect to each lot, the appellant also named as defendants “all persons having or claiming to have an interest” in the property.

The bill of complaint prayed, inter alia, the passage of a decree foreclosing the rights of redemption of the defendants. A motion was also filed for an Order of Publication, supported by an affidavit pursuant to Maryland Rule 105 executed by Thomas F. Mudd, Esq., appellant’s counsel. The affidavit recited the expectation that the persons named as defendants would be personally served or would receive service by certified mail, and that to the best of the affiant’s knowledge and belief there were no other persons having or claiming to have an interest in the respective properties, “but it is deemed advisable to include as parties defendant any and all persons who might conceivably have or claim an interest in the land .. . and for that reason it is necessary to notify any such persons by publication.” An Order of Publication was duly signed (Mitchell, J.) on May 28, 1975, which required publication once a week in each of three successive weeks warning all persons interested to appear by July 23,1975 and redeem the property described “or thereafter a final decree will be rendered foreclosing all rights of redemption in the property and vesting in the plaintiff a title free and clear of all liens and encumbrances.” (Emphasis added.)

Personal service was obtained upon all named defendants with respect to Lot 22, Block A. Thereafter, on August 29, 1975, the court (Mitchell, J.) signed a final order foreclosing rights of redemption with respect to that property.

As for Lot 18, Block C, however, subpoenas upon the record owners were twice returned non est and the court directed counsel for appellant to make further efforts to locate them. Under date of September 16, 1975, attorney Mudd executed an affidavit detailing such efforts to locate the named owners, and concluding that they no longer resided in the State of Maryland. Subsequently, appellant filed, on September 17, 1975, a motion for a final order foreclosing rights of redemption with respect to Lot 18, Block C, and a final order was entered as of September 24, 1975.

The appellee, Suburban Development Corporation, did not appear upon the scene until five days later, on September 29, 1975, when a motion was filed on its behalf to set aside the decrees foreclosing the rights of redemption to both parcels of property. (This motion was filed on the thirtieth day following the final order with respect to Lot 22, Block A, which had been executed by Judge Mitchell on August 29, 1975.) The motion alleged that Suburban Development was an interested party as an assignee of the deed of trust on each of the properties. As the record here discloses, both deed of trust notes were assigned to appellee by the respective payees, without recourse, on January 11,1972. On January 19, 1972, each note was assigned “for collateral security and for value received” to Suburban Trust Company. In February and August, 1973, the respective notes were reassigned, without recourse, to Suburban Development Corporation. None of these assignments was recorded.

Appellee’s motion to set aside the decrees also asserted that its relationship to the property was known both to the plaintiff and to his attorneys, “but that no attempt was made by the plaintiff directly to notify the purchaser of the pendency of this action.” The motion also made reference to a telephone conversation on August 26, 1975 between appellee’s counsel and John Mudd, Esq., a partner of appellant’s counsel of record, in which the former requested pay-off figures for redemption purposes; and of a subsequent telephone conversation with Thomas F. Mudd, Esq., at which time appellee’s counsel first learned of the entry of the decree on August 29, 1975. With respect to the latter, the motion alleged “the parties agreed to consider ways to resolve these matters and have entered into discussion.”

In a detailed answer to the motion to set aside these decrees it was asserted, inter alia, that Mr. Perryman was without knowledge as to whether or not Suburban Development Corporation was the assignee under the deeds of trust, and it was averred that there was no legal, moral or equitable requirement that Suburban Development Corporation be named as a defendant. Annexed to the answer was a copy of a communication dated August 7,1975 to Suburban Development Corporation, attention Ronald W. Pickett, President, by counsel for the trustees under the respective deeds of trust. The letter disclosed the equity number of the proceedings below and stated it was written “for the purpose of directing your attention to an equity proceeding filed in the Circuit Court for this County for the purpose of foreclosing the rights of redemption to certain lots purchased by Mr. Perryman for nonpayment of taxes.” The writer also expressed his assumption that Suburban Development was aware of the proceedings because of the “order of publication that has appeared in the local newspaper.”

A hearing on the motion to set aside the decrees was held in the Circuit Court for Charles County at LaPlata on December 19, 1975. Testimony was received from Mr. Pickett, President of Suburban Development, that in January of 1972 his company had purchased the deeds of trust notes from the original holders. (There was no public record of the assignments nor was one required.) Mr. Pickett also briefly testified that the company was willing and able to pay forthwith such sums as the court might deem necessary to pay the taxes, advertising costs and court costs. He was not cross-examined and no other testimony was received. At the conclusion of the hearing, the court (Bowling, J.) announced from the bench:

“. .. the Court is reluctant to set aside a decree which basically — well, which does in fact comply with the laws for the foreclosure of the right of redemption.
Based on the circumstances in the case the Court feels upon the presentation of the document showing the assignment of the deed of trust to Mr. Pickett and based on the evidence that he was unaware of it until just before he consulted with his attorney about it, that the Court will grant the motion in accordance with Rule 625.
The Court feels that 625 applies to all types of decrees, including a foreclosure of the rights of redemption.. .. the Court does have the power to, in the Court’s opinion, to set aside this decree, thirty days having not expired and the Court finding that the petitioner is a party in interest, being the assignee of the deed of trust, and that it would be serious, could result in serious harm or serious loss to the petitioner if the foreclosure was allowed to stand.”

Thereafter, under date of January 12, 1976, the court signed an order stating the amount necessary for redemption of the respective properties, declaring that the properties were redeemed in favor of the petitioner, Suburban Development Corporation, as assignee under the deeds of trust, and ordering that the bill for foreclosure be dismissed.

It is from that order that this appeal has been taken by Mr. Perryman. His sole contention, with which we agree upon the circumstances presented, is that: “A decree entered pursuant to § 112 of Art. 81 of the Annotated Code of Maryland (1957) is final and conclusive and cannot be set aside except upon a finding of lack of jurisdiction or fraud in the conduct of the foreclosure.”

II

First, we observe that there was no finding by the chancellor of fraud or lack of jurisdiction. Nor, upon our examination of the record, do we perceive any basis for a finding of fraud nor any irregularity in the conduct of the foreclosure proceedings. Indeed, there was careful adherence throughout to the procedural requirements set forth in Art. 81, § 97, et seq.

Second, the court’s decision was based solely upon Maryland Rule 625. This Rule pertains to revisory power over judgments, both generally (Rule 625 a.) and on grounds of newly discovered evidence (Rule 625 b.) The language of Rule 625 a., the first sentence of which was applied by the chancellor, is as follows:

“For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.” (Emphasis added.)

Third, it is fundamental that the foreclosure of the right of redemption by a holder of a tax sale certificate is a statutory equity proceeding. Art. 81, § 100. See Dampman v. Litzau, 261 Md. 196, 202, 274 A. 2d 347 (1971). Furthermore, in making provision for this special type of equity proceeding, the Legislature enacted a declaration of policy in Art. 81, § 97:

“The provisions of the following sections of this subtitle shall be liberally construed as remedial legislation to encourage the foreclosure of rights of redemption by suits in the equity courts and for the decreeing of marketable titles to property sold by the collector.”

The Court of Appeals interpreted the above declaration in Thomas v. Kolker, 195 Md. 470, 475, 73 A. 2d 886 (1950):

“.. . [T]he legislature has declared that the public interest in marketable titles to property purchased at tax sales outweighs considerations of individual hardship in every case, except upon a showing of lack of jurisdiction or fraud in the conduct of the foreclosure.” (Emphasis added.)

The court in Kolker applied the predecessor provisions of Art. 81, § 112, entitled “Final Decree”, and § 113, entitled “Decree Conclusive.” Section 112 provides, in part:

“At the expiration of the time limited in the order of publication, and in the subpoena, the court shall pass its decree in the proceedings, in accordance with the general equity jurisdiction and practice of the said court. The decree shall be final and conclusive upon the defendants .. . assigns or successors in right, title or interest, and all defendants shall be barred by said decree as if they had been named in the proceedings and personally served with process. (Emphasis added.)

The succeeding section, pertaining to the conditions upon which a final decree may be reopened, provides, in part:

“No application shall thereafter be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose.. . .” Art. 81, § 113. (Emphasis added.)

Confronted with the obvious and inevitable collision between the first sentence of Maryland Rule 625 a. and §§ 112 and 113 of Art. 81, appellee contends that the provisions of the Rule are nevertheless applicable to equity of redemption foreclosure proceedings because of the language in § 112, above quoted, that “the court shall pass its decree ... in accordance with the general equity jurisdiction and practice of the said court.” We reject this contention. In the first place, Art. 81, § 101, entitled “Jurisdiction of court”, declares that the general equity practice of the courts is to be followed “except as otherwise provided in this subtitle.” Sections 112 and 113 of the subtitle can be read only as establishing the finality of the decree of the court after the procedural requirements of the subtitle have been followed; and there is presented a clear legislative mandate that such a final decree shall be impervious to challenge except for lack of jurisdiction or fraud. The statutory framework therefore does not permit application of the revisory power over judgments set forth in Maryland Rule 625 a. and the latter yields inexorably to Art. 81.

This conclusion is inescapable, as a matter of logic and of statutory construction. Logically, if the first sentence of Rule 625 were applicable to this special type of equity proceeding, the second sentence which permits final decrees to be set aside after the expiration of the thirty days for “fraud, mistake or irregularity” should also apply. Any such construction, however, would clearly do violence to the provisions of § 113 and to the legislative Declaration of Policy with respect to marketable titles previously quoted. With respect to statutory construction — and recognizing that the Maryland Rules of Procedure are legislative in nature and have statutory force, Taylor v. State, 20 Md. App. 404, 412, 316 A. 2d 296 (1974) — it is a well-settled principle that specific terms covering given subject matter prevail over general language of the same or another statute which might otherwise prove controlling. Baltimore National Bank v. State Tax Commission of Maryland, 297 U. S. 209, 215 (1936); United States v. Milk Distributors Association, Inc., 200 F. Supp. 792, 799 (D. Md. 1961). And see Rafferty v. Comptroller of Treasury, 228 Md. 153, 158, 178 A. 2d 896 (1962).

Similarly unavailing is appellee’s contention that a decree pro confesso under the provisions of Maryland Rule 675 should have been entered rather than a final decree, and that under Rule 675 a., a final decree would not have been entered until after the expiration of 30 days from the entry of the order of pro confesso. We recognize that in proceedings for the foreclosure of rights of redemption of property purchased at tax sales, the decree pro confesso procedure has been utilized. See Garris v. Dickey, 22 Md. App. 618, 325 A. 2d 156 (1974); Brashears v. Collison, 207 Md. 339, 115 A. 2d 289 (1955). See also Ginnavan v. Silverstone, 246 Md. 500, 229 A. 2d 124 (1967). The fallacy of appellee’s argument is, however, that the decree pro confesso procedure is not required to be followed in this type of case and, indeed, it would appear to be unnecessary.

That it is not required is plain from pertinent provisions of Art. 81, relating to foreclosure of rights of redemption by equity suits after tax sales at public auction. Thus, § 106 provides that the notice to parties defendant after filing of the bill of complaint shall warn them to appear on a day certain, to answer the bill or to redeem the property, and that it must contain a statement that in the event of default “a final decree will be rendered foreclosing all rights of redemption in the property.” (Emphasis added.) Again the provisions of § 107, pertaining to notice by publication warn that in the absence of redemption of the property and an answer to the bill, “a final decree will be rendered foreclosing all rights of redemption in the property, and vesting in the plaintiff a title, free and clear of all encumbrances.” (Emphasis added.) It is patent therefore that the statute does not mandate the decree pro confesso procedure set forth in Maryland Rule 675.

It is also quite clear from the statutory framework of Art. 81 that the decree pro confesso procedure is unnecessary in this type of proceeding because all the proof required to establish the entitlement of the certificate holder to a final decree of foreclosure must be set forth in the bill of complaint itself. Art. 81, § 102. Thus, the plaintiff is required to disclose:

(a) The fact of the issuance of the certificate of sale, the original or a certified copy of which must be attached to the bill of complaint,
(b) A description of the property in substantially the same form as the description appearing on the collector’s tax roll,
(c) The fact that the property has not been redeemed by any party in interest, although more than one year from the date of the sale has expired,
(d) A statement of the amount necessary for redemption.

Thus, upon a failure of all interested parties to redeem or to answer the bill of complaint, all. that remains is the execution by the collector of a deed upon payment by the plaintiff of any balance of the purchase price of the property, together with any taxes, interest and penalties due. Clearly, there is no necessity for the entry of a decree pro confesso prior to the entry of a final decree, and the statute does not require it.

Finally, we observe that the procedure prescribed by the foreclosure subtitle adequately assures the protection of interested parties consistently with the legislative recognition of the public interest in marketable titles to property purchased at tax sales. With respect to parties, § 103 provides that the plaintiff in any proceeding to foreclose the right of redemption shall be the holder of the certificate of sale. The defendants are also specifically enumerated as:

(a) The owner of the property as disclosed by a search of the land records, of the records of the register of wills and of any court of law or equity of the county;
(b) If the property is subject to a ground rent, the owner of the fee simple title and the owner of the leasehold title as disclosed by a search of the same records;
(c) Any mortgagee of the property or his assignee of record, named as such in any unreleased mortgage recorded among the land records of the county;
(d) The State of Maryland may be made a party defendant.

Any other person having or claiming any right, title or interest or equity of redemption may be included as defendant by the designation, “all persons having or claiming to have any interest” in the property; and it is specifically provided that such persons may be proceeded against by order of publication. Furthermore, an interested party may redeem the property at any time and is barred only by a final decree of foreclosure. Art. 81, § 100. Heill v. Staniewski, 265 Md. 722, 725, 291 A. 2d 449 (1972); Keefauver v. Richardson, 233 Md. 545, 551, 197 A. 2d 438 (1964).

A purchaser at a tax sale may not file for foreclosure until one year and one day has passed from date of sale. Art. 81, § 100. While the one year period is obviously designated to afford ah interested party a sufficient opportunity to redeem, once the bill to foreclose is filed the statutory procedure assures notice by subpoena and publication, thus providing an additional minimum period of sixty days to a party to exercise his rights of redemption. Art. 81, § 106. In the case sub judice, the total elapsed time between the date of the public sale and the final decrees appealed from was approximately 29 months in the case of Lot 18, Block C, and approximately 28 months in the case of Lot 22, Block A. In the light of the published notice of the pendency of the proceedings and of the written notice by the trustees’ counsel to the president of the appellee corporation in early August, 1975, we are at a loss to understand why no petition for a determination of the amount necessary to redeem was ever filed by Suburban Development Corporation.

Decree reversed; cause remanded for further proceedings not inconsistent with this opinion; appellee to pay the costs.

      . Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of sale, the certificate becomes void, any interest in the property is extinguished and all money received by the collector is forfeited and applied toward the taxes in arrears on the property. Art. 81, § 100.

      . The deed of trust note for Lot 18, Block C was dated September 14, 1971 and was in the principal amount of $5,164.41. The note for Lot 22, Block A was dated August 5, 1971 and was in the principal amount of $14,644.38.

      . The affiant stated in part that he had inquired of the appropriate representatives of the appellee, Suburban Development Corporation, described as the secured party under a deed of trust from the record owners, and was advised by said representatives that they had also attempted, unsuccessfully, to locate the record owners with respect to their intentions concerning the payment of the outstanding balance under the deed of trust.

      . Suburban Development’s memorandum of points and authorities included Maryland Rule 625 and Code, Art. 81, § 101.

      . This communication by counsel for the trustees was, it appears, the result of a letter from Thomas F. Mudd, Esq., counsel for appellant, dated May 27, 1975, to one of the trustees, informing him that he and his co-trustee would be served with suit papers in connection with the recently filed foreclosure suit on behalf of Mr. Perryman. Mr. Mudd’s letter stated: “I suspect that both of these trusts were assigned to Suburban Development, and if this is the case, I would suggest that you forward the suit papers to Ron Pickett [President of Suburban Development] for action by him.”

      . When the Rule is applicable, the trial court possesses an extremely broad power of revision for a period of 30 days and should exercise its discretion liberally. In equity, under Maryland Rule 671 a., a final decree shall be considered enrolled after the expiration of 30 days and it may be revised only on grounds of fraud, mistake or irregularity. Hamilton v. Hamilton, 242 Md. 240, 218 A. 2d 684 (1966).