author: Lowe, J.,

text:
    AUBREY A. CHEEK et al. v. J. B. G. PROPERTIES, INC., et al.
    [No. 814,
    September Term, 1974.]

      Decided September 8, 1975.

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

      Mark A. Winkler and Samuel M. Shapiro for appellants, cross-appellees.

      William F. Abell, Jr. and Joseph M. Quirk, with whom were Heeney, McAuliffe, Rowan & Abell on the brief, for appellees, cross-appellants.
   Lowe, J.,

delivered the opinion of the Court.

The moral disdain one feels for the quick tempered who abuse another with vile or abusive language has not always been equated by the courts with potential civil liability. When Christ said “whoever says to his brother ‘Raca,’ shall be liable to the Sanhedrin and whoever says, ‘Thou fool!’, shall be liable to the fire of Gehenna,” His opinion was not expressed vis a vis First Amendment rights as interpreted by the Supreme Court. While the danger of hell-fire is not lessened by each opinion that Court hands down, the dangers of retribution in this life certainly are. The courts historically — and more so contemporarily — have declined to restrict legally the freedoms of speech and press to the extent they were morally restricted by the Christian religion.

This perhaps arises from the origin of the action. Defamation was treated initially as a dispute to be arbitrated by local seignorial courts in their super-parent roles. As these dissipated, along with the feudalism that sustained them, defamation fell under the aegis of the ecclesiastical courts where it was punished with a penance as a sin. While some defamatory tort action trickled into the civil courts during the sixteenth century, the marked metamorphosis had to await the historically renowned Court of the Star Chamber. The jurisdiction was not gracefully given over by the ecclesiastical courts and was even more grudgingly received from them, by the civil courts, on a case by case basis. With the abolition of the Star Chamber, however, common law courts assumed libel in its entirety, and slander more gradually.

There continued to be recognized a difference between libel, which was criminal as well as tortious, and slander which was not criminal unless made punishable by statute. Perkins on Criminal Law, (2nd ed.), at 414. Although not as frequently expressed as in years past, the reverence given the printed word has continued to project libel as the more onerous tort. Indeed, as slander jurisdiction was eased upon the common law courts, they preserved the jurisdictional barrier by requiring proof of “temporal” damage. Prosser, Law of Torts, (4th ed.), at 754 citing Holdsworth, Defamation in the Sixteenth and Seventeenth Centuries.

The distinction between the two torts has survived the Revolution and appears in Maryland case law in the form of a presumption:

“There is, however, a distinction between oral and written or printed defamation, and the presumption that words are defamatory arises much more readily in cases of libel than in cases of slander.” Bowie v. Evening News, 148 Md. 569, 574; See also Greenbelt Coop. Pub. Ass ’n v. Bresler, 253 Md. 324, 355.

Beyond that presumption and the common sense maxim “scripta manent, verba volent,” the primary recognition given the distinction has been based on the extent of the defamation’s dissemination resulting from the means of publication used.

One further and basic difference retained is the emphasis placed in slander cases upon the type of damage allegedly done. Arising from the transitional requirement of proof of temporal damages, there arose a practice, if not a rule, that slander is not actionable unless actual damage is proven. From this grew certain exceptions which did not require allegations or proof of actual damages. They included imputation of a crime or of a loathsome disease and defamations affecting one in his calling. Maryland has added by statute the slander of a female by injuring her character or reputation for chastity. Cts. Art., Sec. 3-501, 502. This type of defamation was considered so obviously detrimental, no proof of any actual harm to reputation or any other damage was required for either nominal or substantial damages. Proof of the statement itself is considered to establish the existence of some damages, i.e., per se, and the jury is permitted, without other evidence, to estimate the amount. Prosser, Law of Torts, at 754. This oddity of tort law recognized as “the doctrine of presumed damages” (although usually referred to as “general damages”) is not applicable, however, to less substantial slanderous utterances which become actionable only by reason of some “special damage” (i.e., per quod) whereby the claimant has been put to expense or inconvenience as a consequence of the defamatory language; or the loss of some benefit by reason of the wrongful utterance. Poe, Pleading and Practice, Tiffany Ed., Vol. 1, Sec. 174, at 132. Accord General Motors v. Piskor, 27 Md. App. 95 at 119.

The issue of whether the words used are in and of themselves damaging, i.e., actionable per se, is a matter of law for the court’s determination. American Stores v. Byrd, 229 Md. 5; Piskor, supra, at 123.

In the absence of an alternative, the issue may be resolved as a pleading question by a demurrer. Cf. Thompson v. Upton, 218 Md. 433. If a plaintiff asserts defamatory language which is not damaging in and of itself and fails to set forth (or to support by specific proof) special damages whereby he was injured (per quod), it follows that he cannot recover.

Punitive Damages

Exemplary or punitive damages, as the name connotes, are rather a punishment for and deterrent to wrongdoing than a means of recompensing the victim. To the victim they are a windfall not necessarily related to the injury he has suffered. “Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Welch, 418 U. S. at 350, 41 L.Ed.2d at 811.

The Court of Appeals early held that punitive damages are not proper in libel and slander cases, unless malice is shown on the part of defendant. Snyder v. Fulton, (1871) 34 Md. 128; Fresh v. Cutter, (1890) 73 Md. 87. Once again, however, the court’s decision on whether the utterance was damaging per se may be significant in determining the propriety of punitive damages. Where the words are damaging per se, and there is nothing to rebut the imputation of malice, punitive damages as well as “general” compensatory damages, may be awarded. Shockey v. McCauley, 101 Md. 461.

The Facts

Appellants, who were tenants in an apartment building, sued their corporate landlord, J.B.G. Properties, Inc. (J.B.G.) and the apartment manager, Alfred A. Flori (Flori) for slander and trespass. It appears that Mr. Flori and an assistant came to the Cheeks’ apartment to perform plumbing repairs. An argument ensued in which Mr. Flori, in the presence of guests, was quoted by Mrs. Cheek as saying:

“ ‘He wheeled and came up and said ‘I have had it with you Cheeks, you have been nothing but trouble makers ever since you moved into the building. You can’t control your kids and your son was out playing football and the football hit the window. I came out and the boy told me he could play where he wanted to.’ I said T don’t believe that.’ He said T watched your daughter break branches off a $50 tree that I just bought.’ I said T don’t believe that.’ He said ‘It’s true, I don’t care whether you believe it or not.’ I said ‘Why didn’t you say something to her if she was in the wrong.’ He said T couldn’t be bothered.’ He said ‘First of all, I thought it was a little girl out there playing football. I asked my wife if it was a boy or a girl and she said it was Joey Cheek.’ ”

After this outburst she became emotional and went into her bedroom and called her husband. During the period of time between the incident and the trial she was in an emotional state at various times, apparently from this event. Mrs. Cheek was allowed to testify that she had to obtain a prescription for tranquilizers from her doctor.

The jury returned a verdict on May 3, 1974 for each plaintiff against each defendant:

1. Aubrey A. Cheek, against:

a. Flori — $250 compensatory; $1250 punitive

b. J.B.G.— 250 compensatory; 250 punitive

2. Debra Ann Cheek, against:

a. Flori — $250 compensatory; $1250 punitive

b. J.B.G.— 250 compensatory; 250 punitive

3. Joseph Scott Cheek, against:

a. Flori — $250 compensatory; $1250 punitive

b. J.B.G.— 250 compensatory; 250 punitive

4. Eugenia Sue Cheek, against:

a. Flori — $250 compensatory; $1250 punitive

b. J.B.G.— 250 compensatory; 250 punitive

A motion for judgment n.o.v. or for a new trial “or Remittitur” was filed on May 6, 1974. On June 21, 1974 the motion was heard and’decided. The trial judge denied the motion for a new trial although he candidly admitted that he “would have reached an entirely different result.” While on the one hand noting the difficulty we often have of sensing the flavor of the case from the cold record, the judge adopted a unique means of ameliorating the result he did not like. He decided that the jury wrongfully apportioned the punitive damages as between the two defendants. He decided that punitive damages were a “joint and several obligation” and could not be apportioned by the jury. He therefore entered judgment n.o.v. for all those punitive damages which exceed $1000. In effect he reduced the punitive damages from a total of six thousand dollars from both defendants, to a total of one thousand dollars presumably to be divided equally among the four plaintiffs in the amount of $250 each.

Seven weeks later, acting sua sponte, he decided that the judgments he had directed be entered as reduced by him “were below the jurisdiction of [the] court” and he therefore:

“ORDERED, pursuant to Maryland Rule 625 that the Judgments heretofore entered in this case BE and the same ARE hereby vacated, and it is further ORDERED, pursuant to Maryland Rule 653 that judgments of non-pros shall be entered in this case on the final verdicts. ...”

The plaintiffs below (appellants here) were apparently satisfied with the verdict of the jury but question the action of the trial court following that verdict. They contend that the court’s after-the-fact determination that punitive damages are not apportionable is error, that the entry of judgment n.o.v. reducing the punitive damages to the lowest common denominator was error, and that the entry of judgment non-pros pursuant to Md. Rule 653 was error.

Defendants below countered by cross-appeal. They contend here (among other things) that “the words alleged to have been spoken are not slander per se as a matter of law.” Because the trial judge left that for the jury to determine as a matter of fact, rather than ruling upon it as a matter of law, we shall reverse. Cross-appellants’ tangential issues need not be discussed; however, because we will remand for new' trial it is desirable if not necessary that we comment upon issues raised by appellants.

Slander Per Se, A Question of Law

The record reveals that the appellees, who have cross-appealed, excepted to the court’s instruction on slander per se.

“MR. ABELL: I would also like an exception to the slander per se; I don’t think that the language that you can’t control your children is specific enough to indicate the charge of any crime. Secondly, the instructions as it goes to the daughter of cutting down tree branches from trees, at her age it would not be a crime in any event. She was a juvenile and this would be my exception on that.”

Those portions of the judge’s instructions relating to slander per se and the damages premised thereon were as follows:

“The first category of slander is what we call ‘slander per quad’ or quod, if you are a real purist in Latin. In order for the plaintiffs to recover for the utterance of defamatory words in this class, you must find all of the following. That they were false, that they were spoken with malice, that they were published and that they caused some specific damage to the plaintiffs.
Now, the words that are alleged to fall into this category are the statement ‘You Cheeks have been nothing but troublemakers since you moved in’, or words to that effect. Those words, if slanderous, are slanderous per quod. The second category of slander is what we call ‘Slander per se.’ That translated means words as such are slanderous. In order for the plaintiffs to recover under this category, you must find only that the words were false and published and that they accused the plaintiffs or any of them of the commission of a crime intended to injure them and their reputation. You will understand that if you accuse someone falsely of the commission of a crime, you have tended to injure his reputation, so the crucial part about these words of this type is that they must be false as well as published.
Now, the statements that are alleged to fall into this category are the statements allegedly made by Mr. Flori to the effect that ‘You can’t control your children and I watched your daughter snap branches off a tree I paid $50 for just yesterday’, or words to that effect.
Compensatory damages in a slander case is divided into two parts. We will call the first part special damages. Those are damages which have actually occurred as the natural result of the wrong committed. They include money actually expended, time lost from work as well as pain and suffering, humiliation, mental anguish and so on. If you find that the words were slanderous per quod, those are the only kind of special damages that you can consider. If you find that there were words which were slanderous per se, you are also permitted to consider in addition to the special damages, general damages. These are damages which the law presumes must necessarily result from the publication of the defamatory matters. Even if there were no special damages shown, you may allow damages to the plaintiffs or any one of them for the value that you assign to the loss of reputation that you are satisfied has been proven as a result of the slander. In addition to the general damages and special damages, which are part of compensatory damages, you don’t itemize or break them down, compensatory damages would be a single lump sum or figure encompassing either or both types of damages. In addition to that, the plaintiffs claim punitive damages. Compensatory damages as the name suggests are damages to compensate. Punitive damages on the other hand are damages designed to punish. You may not allow punitive damages unless you find some compensatory damages. If you find some compensatory damages, you will consider whether or not you will allow punitive damages. Punitive damages are designed to punish the defendants for the wrong they have done for two reasons. First, to warn them that they must not do it again and secondly that if anyone hears about their predicament would be dissuaded from doing similar things and getting in such a predicament themselves. If you find that the statements were slanderous per quod, made with malice or if you find there were statements made slanderous per se, which case you don’t need malice, you may award punitive damages.” [Emphasis added].

In American Stores Co. v. Byrd, 229 Md. at 15, after a thorough analysis of the historical distinction between slander damaging per se and per quod, Judge Horney said:

“With respect to the further contention concerning actionability per se, we agree that ordinarily it is the responsibility of the court, when required to do so, to rule as a matter of law (and not the duty of the jury to find as a fact) whether the words and behavior of a speaker are actionable per se. But inasmuch as there was no objection to the instructions, we need not decide in this case whether the slanderous per se character of the alleged defamatory words and behavior were properly submitted to the jury.”

More recently Judge Levine quoted that same paragraph in Montgomery Ward and Co. v. Cliser, 267 Md. 406, 423, but was able to avoid the issue for other reasons:

“We need not decide whether in this case the issue should have been decided by the court as a matter of law, since we have determined that the words and conduct were actionable per se.”

We are not so fortunate; here we must face the issue. The words and conduct were not damaging per se and timely exception was taken to the instruction.

Appellants contend that Mrs. Cheek was slandered per se since the assertion that she could not control her children charged a violation of Article 26, § 91 (now Cts. Art., § 3-840) and that her children were slandered per se by the charge that they broke branches off of a fifty dollar tree. Appellants contend the latter is an indictable offense, although they do not tell us what one can be indicted for if one breaks twigs off of a tree. Presumably they assume the accusation charged some crime such as malicious destruction of property, Md. Code, Art. 27, § 111. Even allowing for such an assumption, that accusation could hardly be said to have the ominous overtones that a charge in 1808 of poisoning another’s horse would carry, and yet so harsh a charge as that was held not to be actionable per se. Chaplin v. Cruikshanks, 2 H & J 247. The offending words must impute an indictable offense for which corporal punishment is the immediate penalty to be actionable in slander cases, Griffin v. Moore, 43 Md. 246; Dorsey v. Whipps, 8 Gill 457, and it is hardly likely under our current law and philosophy that the breaking off of a branch or branches of a fifty dollar tree would be such an offense even if the perpetrators had not been juveniles. Cts. Art., § 3-801, et seq. (former Art. 26, § 51.)

Nor do we see the charge that Mrs. Cheek could not control her children as a crime or as such an indictable offense. The juvenile law to which appellants point calls for “wilful neglect” of a parent before the offense is punishable and even then it falls under the juvenile jurisdiction of the circuit court. It is apparent that the language used was intended to offend, but it is certainly not language that the average lay person could construe as charging indictable offenses as a matter of law. Pollitt v. Brush-Moore Newspapers, Inc., 214 Md. 570, 575; Blumhardt v. Rohr, 70 Md. 328.

Since we do not know whether the jury verdict awarding punitive and compensatory damages was based on a presumption of malice arising from what it erroneously treated as a slanderous per se remark, that possibility requires that we reverse and remand for a new trial. An award of compensatory damages on a slander per quod theory would require proof, and a jury finding, of actual damages; an award of punitive damages upon that theory would require proof, and a jury finding of actual malice. Fresh v. Cutter, 73 Md. at 92.

As we have indicated, we see no purpose to be served in reviewing the contentions raised by cross-appellants on the issue of trespass. We are concerned with the procedural aftermath of the trial and the reasons given by the court for its action which were the essence of the direct appeal by plaintiffs below. Although our ultimate result would release us from the obligation of responding to the question of apportionment of punitive damages — as yet undecided in Maryland — or the unique procedural wake that flowed from the court’s views on that question, we feel that in this instance to apply the “Law of Judicial Parsimony” would result in a “judicial short change.”

Judgment N.O.V.

On June 21, 1974 the court heard cross-appellants’ motion for judgment n.o.v. or, in the alternative, for a new trial. Reflecting upon the disparity between the punitive damages assessed against each of the defendants the trial judge said:

“It is my understanding that punitive damages are joint and several obligations and therefore the verdict as to the punitive damages, and I am positive that the Court’s instructions were to this effect, it should be a single verdict of the punitive damages. ... I am not prepared to upset the verdict on punitive damages but I think the law requires me to give Judgment N.O.V. for all these punitive damages which exceed $1,000.
Madam Clerk, the docket entries will show the fact of this hearing, that the motion for a new trial is overruled — and the motion for n.o.v. is granted as to the judgment of punitive damages only and only to the extent that that judgment would be reduced to the total of one thousand dollars to be entered jointly and severally against all defendants.”

We find no authority for the use of judgment n.o.v. to reduce the verdict of the jury. The dispositional authority of the court on the motion heard is limited by Md. Rule 563.

“If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment, and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” Md. Rule 563 b 1.

Although the court might have granted a conditional new trial, i.e., unless plaintiffs agreed to a remittitur, once the new trial was denied the judgment n.o.v. could only be granted or denied but could not be used to amend, reduce or alter a jury’s verdict.

Apportionment of Punitive Damages

It is apparent that the jurors below, without instruction by the court, apportioned the punitive damages among the defendants depending upon their differing degrees of culpability. It is equally clear from the reason assigned by the court for reducing the verdict that they did so contrary to the court’s understanding of the law.

It is clear in Maryland, and appears to be generally recognized, that compensatory damages may not be apportioned among joint tort-feasors. The issue as to punitive damages is less clear in Maryland. Courts throughout the country which have met the punitive damages issue are divided. Annot. 20 A.L.R.3d 666. Of approximately eighteen jurisdictions, apportionment is favored two to one. We are persuaded that Nance v. Gall, 187 Md. 656, 674 inclines us in the direction taken by the majority of states.

Those jurisdictions favoring apportionment seem to rely on the reasonable view that a jury should be permitted to vary the damages depending upon the degree of culpability since punitive or exemplary damages are not compensation for injury; instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. Cf., Gertz v. Welch, supra, 418 U. S. at 350, 41 L.Ed.2d at 811.

Appellee directs our attention to a Supreme Court case which he argues “disallows an apportionment of punitive damages among joint to't feasors.” Washington Gaslight Co. v. Lansden, 172 U. S. 534. Our reading of that case does not provide us that conclusion. The issue there decided was whether evidence of the wealth of one joint tort-feasor could be introduced so as to subject another joint tort-feasor to unapportioned punitive damages based upon the affluent defendant’s ability to pay. The Court said:

“While all defendants joined are liable for compensatory damages, there is no justice in allowing the recovery of punitive damages in an action against several defendants, based on evidence of wealth and ability to pay such damages on the part of one defendant only.” Id. at 553.

As to the issue of apportionment the Court indicated:

“What the true rule is in such case is not, perhaps, certain .... But we have no doubt it prevents evidence regarding the wealth of one of the defendants as a foundation for computing or determining the amount of damages against all.” Id. at 553.

Although the court below issued no instruction relating to apportionment and was not so requested by either party, it did instruct the jury to consider the financial standing of the appellees.

“In making your award of punitive damages, you will take into consideration what you know from the evidence in this case about the financial standing of the defendants. What may be nothing more than a drop in a bucket to a rich person may completely wipe out a poor man. What you are trying to do is punish him. In connection with that you have to arrive at an amount that is proper to punish him based upon the financial position you find from the evidence.”

If is apparent that if the jury is instructed to consider the wealth and affluence of the defendants for punitive damage assessment, the reasoning of Washington Gaslight, supra, is persuasive. Without apportionment of punitive damages, the admission of evidence of wealth of an affluent defendant can be devastating to an impecunious co-defendant who may well be far less culpable.

“And the verdict enhanced by the evidence of the wealth of one defendant, might be collected from the defendant the least able to respond and the least culpable of all, who would thus be mulcted in punitive damages, the amount of which might have been measured by the evidence of wealth of another defendant.” Washington Gaslight, 172 U. S. at 552.

Such reasoning affirms our view that Maryland should be in the majority of states permitting apportionment of punitive

Judgment Non-Pros

On August 14, 1974, nearly a month after the Notice of Appeal was filed by appellants, the trial judge filed the following order:

“The Court discovered this date as a result of a review of the docket entries in this case in connection with a Motion for an Extension of time for filing the record in the Court of Special Appeals that this Court by mistake on June 21, 1974, directed the entry of Judgments in amounts which are below the jurisdiction of this Court. The Court is of the opinion that this mistake ought to be corrected. It is therefore this 14th day of August, 1974, by the Circuit Court for Calvert County, Maryland
ORDERED, pursuant to Maryland Rule 625 that the Judgments heretofore entered in this case BE and the same ARE hereby vacated, and it is further
ORDERED, pursuant to Maryland Rule 653 that Judgments of non-pros shall be entered in this case on the final verdicts.
AND IT IS FURTHER ORDERED, that the Clerk shall make appropriate correction of Judgment Records of this Court in accordance with this Order, nunc-pro-tunc.”

Proemially we point out that our further comments are desirable dicta rather than conclusively necessary since it is apparent that the appeal and cross-appeal to this Court, noted on July 18, 1974 and July 22, 1974, divested the lower court of authority to issue the order of August 14, 1974, nunc pro tunc or otherwise. Bullock v. Director of Patuxent Institution, 231 Md. 629, 633. As a result of substantial changes in jurisdictional statutes, arising most recently out of the creation of the District Court and the consequent repeal of the jurisdictional statutes for Justices of Peace and related courts (found formerly in Md. Code, Art. 52, Secs. 5, et seq.), the consequences which may arise from an erroneous entering of the judgment non-pros presupposed by Rule 653, such as the instance before us, cause us to comment.

Initially we note our inability to explain the reasoning of the lower court when applying Rule 653 (which is limited to a “verdict of a jury”) to a verdict arrived at by the court even assuming it had been “below the jurisdiction of the court. . . .” Furthermore, it is apparent that the rule does not provide an authority for judgment non-pros, but rather presupposing the absence of jurisdiction, it provides for what follows where one is entered. But see H. J. McGrath Co. v. Wisner, 189 Md. 260, 268.

It is unfortunate that the court below provided us with no foundation as to its reasoning for its order and we are equally distressed that counsel on either side provided us but cursory assistance justifying or decrying the order. We were told, however, that the $1,000 total to which the judge reduced the punitive damages was to be divided equally among the four appellants, i.e., $250 each. Thus each appellant would have received $250 compensatory and $250 punitive only. Since this totals $500, had that been all that each appellant claimed, it would not quite reach the sum permitting a jury trial as of right. Md. Const., Art. XY, Sec. 6, reads:

“The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably preserved.”

Cts. Art., Sec. 4-401 sets the monetary limit of District Court jurisdiction. Sec. 4-402 provides exceptions thereto which exceptions include subsection:

“(e) Jury trial. — (1) In a civil action in which the amount in controversy exceeds $500, a party may demand a jury trial pursuant to the Maryland District Rules.”

We can but surmise that the court below assumed either or both of these prerequisites to a right to jury trial as jurisdictional minimum limitations of amounts recovered in jury trials. The availability of the constitutional guarantee and its Code companion relating to District Court jurisdiction, is obviously dependent not on the size of the verdict, but on “the amount in controversy.” (Here, that amount was substantially in excess of $500.)

The jurisdictional statutes extant prior to the advent of the District Court varied from county to county; however, they were generally perceived to have been one hundred dollars. Md. Code (1972 Replacement Vol.) Art. 52, Sec. 6.

“If the sum claimed in actions for redress for wrongs, or recovered in actions for the enforcement of contracts, exceeds one hundred dollars, justices of the peace have no jurisdiction. . . .
As a necessary extension of this doctrine it appears that where a people’s court has exclusive jurisdiction of matters in excess of this amount, the law courts of Baltimore City and the circuit courts of the particular county are likewise without jurisdiction in any amount below the limit of exclusive jurisdiction in the inferior court. If the verdict shall be below the jurisdiction of the court and a non pros accordingly entered, the record is a bar to any action founded upon the same cause of action in any court the limit of whose jurisdiction is greater than the amount of the verdict; but the amount of the verdict, less any costs assessed against the plaintiff, constitutes a debt due by the defendant and is recoverable in any court (such as a people’s court) or before any justice of the peace having jurisdiction to that amount.” (Citing by footnote Md. Rule 653). 1 Poe’s Pleading and Practice, Sixth Ed., Sec. 40.

Appellees here directed us to Associates Discount v. Hillary, 262 Md. 570, 583 where Judge Barnes for the Court of Appeals applied Md. Rule 653 to a verdict of $19.91 and remanded the case for entry of judgment of non-pros presupposed by the rule, “inasmuch as such verdict is below the jurisdictional amount of the Circuit Court for Anne Arundel County.” It seems apparent there, although left unsaid, that Judge Barnes alluded to then Md. Code, Art. 52, Sec. 12 which set forth. exclusive monetary jurisdictional limits for each of the counties’ then justices of the peace and people’s courts, wherein:

“ . . . the jurisdiction of the judges of the people’s court shall be exclusive in civil cases involving amounts not exceeding $300.00.”

That statute was in full force and effect on June 25, 1971 when Associates Discount v. Hillary, supra, was decided, and was not repealed until the creation of the District Court in 1972.

With the advent of the District Courts, exclusive jurisdiction was given them over tort cases:

“ ... if the . . . damages claimed do not exceed $5000.” Cts. Art., Sec. 4-401.

In addition to substantially having increased the monetary jurisdiction for the newly created District Court, the Legislature significantly clarified its “exclusive original jurisdiction” as being determined by the “damages claimed.”

Associates Discount, supra, would thus seem inapposite on its face to the present case. It related to entry of a non-pros judgment where the “verdict” of a jury was “below the jurisdiction of the court.” Since jurisdiction under the new District Court system is, by definition, a matter of claim rather than a matter of verdict, a non-pros does not appear appropriate by virtue of any existing jurisdictional statute. The trial judge here was seemingly misled by the exception to the District Court’s general monetary jurisdiction contained in Cts. Art., Sec. 4-402 (e) (1) which reiterates in'jurisdictional context the constitutional right to a jury trial for amounts in controversy in excess of $500.

We conclude that application of the rule to contemporary courts may very well be an anomaly, phrased as it is almost as its progenitor was originally enacted by the Laws of Maryland, 1888, Ch. 366. Nor are we persuaded that its current utility was affirmed by the Rules Committee when it was amended to substitute “District Court” for “Peoples Court” as that transition became imminent. Such amendment may have resulted from a word search by a computer in the housecleaning of the Code.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid one-half by appellants and one-half by appellees.

      . Matt. v. 21-23 (Raca — “empty-bodies.” Sanhedrin — “Council.” Gehenna — “where bodies of criminals were burned after execution.”)

      . The Supreme Court’s recently imposed restrictions on defamation suits arising from matters of general or public interest, Gertz v. Welch, 418 U. S. 323, are not treated here because this case involves a purely private slander action. Sindorf v. Jacron Sales Co., Inc., 27 Md. App. 53.

      . See Prosser, Law of Torts, (4th ed.) Chap. 19, at 737, et seq.

      . “Written words remain while spoken words fly away.”

      . “A layman, with the narrow outlook of a layman on these affairs, might rashly suppose that it is equally injurious to say at a public meeting, ‘Mr. Chicken is a toad,’ and to write upon a post card, ‘Mr. Chicken is a toad.’ But the unselfish labors of generations of British jurists have discovered between the two some profound and curious distinctions; for example, in order to succeed in an action for slander the injured party must prove that he has suffered some actual and special damage, whereas the victim of a written defamation need not; so that we have this curious result, that in practice it is safer to insult a man at a public meeting than to insult him on a post card, and that which is written in the corner of a letter is in law more deadly than that which is shouted from the housetops. My lords, it is not for us to boggle at the wisdom of our ancestors, and this is only one of a great body of juridical refinements handed down to us by them, without which few of our profession would be able to keep body and soul together. Jus varium, judix opulentus.” A. P. Herbert, Misleading Cases in the Common Law, “Chicken v. Ham.”

      . “What constitutes special damages” is treated at some length by Poe, supra, Sec. 174, at 132 where he concludes by noting that special damages are not restricted to pecuniary loss but include loss of hospitality of friends. Prosser, supra, at 760, et seq. treating the same subject, indicates the need to prove some pecuniary damage before the more intangible sufferings may be appended or “tacked on as ‘parasitic’ to it.”

      . Mr. and Mrs. Aubrey Cheek individually and as next friend of their children, Debra Ann and Joseph Scott.

      . “Once again, there was evidence and actions of the witnesses and the parties in the Courtroom in which the Jury could reach that conclusion. You will really never understand this case unless you saw the parties and observed their demeanor in the Courtroom, and from the record that is going to be an impossible flavor or feeling to get. The printed record in this case will not in any way — it is impossible to adequately reflect; I am not even sure a moving picture would adequately reflect the expressions on the people’s faces and the feelings that were underlying their testimony in relationship to each other. Once again I am not prepared to upset the verdict on punitive damages but I think the law requires me to give Judgment N.O.V. for all these punitive damages which exceed $1,000.”

      . Md. Rule 625 limits the court to a thirty day period of revisory power over its own judgments except in case of fraud, mistake or irregularity, none of which were here indicated.
      Md. Rule 653 reads:
      “Where by reason of the verdict of a jury being below the jurisdiction of the court, a judgment of non pros is entered, the record of such judgment shall be a bar to any action founded upon the same cause of action in any court, the limit of whose jurisdiction shall be greater than the amount of such verdict; but the amount of such verdict less such costs as may be adjudged against the plaintiff, shall be a debt from the defendant to the plaintiff, recoverable in the District Court.”

      . That statute reads:
      “Any parent, guardian or person having the custody, control or supervision of any child defined by the statutes of this State as a minor without proper care or guardianship, or any person who shall knowingly or wilfully encourage, aid, cause, abet, or connive at such state of absence of proper care or guardianship of a minor, or who shall knowingly or wilfully do any act or acts to directly produce, promote or contribute to the conditions which render such child a minor without proper care or guardianship, or who having the custody, control or .supervision of such child, shall wilfully neglect to do that which will directly tend to prevent such a condition, or to remove the conditions that render such a child a minor without proper care or guardianship shall be proceeded against as provided herein.”

      . This is not true in libel cases, Snyder v. Fulton, 34 Md. at 134, because of the “broad and just distinction between spoken words and words written or published.” The Court of Appeals recognizes that “The scope of libel is wider than that of slander. . . Foley v. Hoffman, 188 Md. at 284; see also Pollitt v. Brush-Moore Newspapers, Inc., 214 Md. 570.

      . The Law of Judicial Parsimony “which states that a court should decide no more than it must. . . . But some courts extend this ‘law to the point’ of deciding no more than is necessary to get the case off the desk. Judicial Parsimony then becomes judicial short change.” 49 Calif. Law Review 831.

      . Also see footnote 9.

      . Appellants’ $25,000 claim put them well without the District Court exclusive range.


source: Caselaw Access Project

author:
Moore, J.,
      Gilbert, J.,

license: Public Domain

text:
    LLOYD FRANKLIN DAVIS v. STATE OF MARYLAND
    [No. 916,
    September Term, 1974.]

      Decided September 8, 1975.

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

      Dennis M. Henderson, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Clarence

      W. Sharp, Assistant Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County, and Michael R. Burkey, Assistant State’s Attorney for Allegany County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court. Gilbert, J., dissents and filed a dissenting opinion at page 60 infra.

The issues before us on this appeal are whether appellant who pled guilty to three counts of burglary was properly apprised, when he entered his pleas, of his constitutional privilege against self-incrimination; and whether, with respect to two of the counts, there was a factual basis for the pleas.

Appellant, Lloyd Franklin Davis, was charged by a criminal information on March 6, 1974 with nine counts of burglary. At his arraignment on March 14, 1974, he entered a plea of not guilty and prayed a jury trial. On April 22, 1974, when the case was called for trial in the Circuit Court for Allegany County before The Honorable Harold E. Naughton, appellant’s counsel informed the court that Mr. Davis desired to enter pleas of guilty to the first, sixth and ninth counts of the information. The State thereupon announced that if the pleas were accepted, it would stet the remaining counts. The trial judge then addressed the following questions to the appellant:

“BY THE COURT: Stand please, Mr. Davis. Mr. Davis, in order to make certain that you are entering your pleas of guilty to these three counts willingly, freely, knowingly and with some degree of intelligence, it is necessary that I ask you a few questions and determine that fact.
Now would you please state your full name?
MR. DAVIS: Lloyd Franklin Davis, Jr.
BY THE COURT: Are you able to hear my questions?
MR. DAVIS: Yes sir.
BY THE COURT: And are you now under the influence of any alcohol, drugs, narcotics or pills of any kind?
MR. DAVIS: No sir.
BY THE COURT: Are you represented by an attorney in this case, and if so is he present with you at this time?
MR. DAVIS: Yes sir.
BY THE COURT: And what is his name?
MR. DAVIS: Mr. Robb.
BY THE COURT: Now have you been furnished with a copy of the information filed in this case?
MR. DAVIS: Yes sir.
BY THE .COURT: And have you read the information and discussed it with your attorney?
MR. DAVIS: Yes sir.
BY THE COURT: Do you fully understand the three charges to which you have entered pleas of guilty?
MR. DAVIS: Yes sir.
BY THE COURT: Now the charges that you’ve entered pleas of guilty to are burglary, three counts of burglary, each being a felony for which this Court could give you twenty years in prison on each charge, or a total of sixty years. Do you understand that, Mr. Davis?
MR. DAVIS: Yes sir.
BY THE COURT: Now has anyone promised you that I would go easy on you if you entered pleas of guilty?
MR. DAVIS: No sir.
BY THE COURT: Any promises or threats been made to induce you to plead guilty?
MR. DAVIS: No sir.
BY THE COURT: You understand that if you plead not guilty that at the trial the State would have to produce witnesses against you in open Court, and that you would have the right through your attorney to cross-examine all of them?
MR. DAVIS: Yes sir.”

The next question asked by the court pertained to appellant’s privilege against self-incrimination:

“BY THE COURT: Do you also understand if you plead not guilty you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the stand the prosecuting attorney may not comment or make reference to your failure to testify?
MR. DAVIS: Yes sir.
BY THE COURT: Do you understand that? Do you also understand that if you plead not guilty that you have the right to trial by a Jury or by the Court without a Jury, the choice would be yours? At the trial you would be presumed innocent until proved guilty beyond a reasonable doubt.
MR. DAVIS: Yes sir.
BY THE COURT: Now I have recited to you certain constitutional rights which you have as a defendant in a criminal case. Do you understand that by pleading guilty you are in fact waiving these rights?
MR. DAVIS: Yes sir.”

The State was then requested by the court to give its “version of these three cases” and responded as follows:

“MR. KELLY: May it please the Court, the facts in these cases would be that on the 11th day of February, 1974, Lieutenant Kenneth Morrissey of the Cumberland Police Department received a tip that the home of Carl Pete Robb, located at 716 Winifred Road, Cumberland, Maryland, would be broken and entered that evening.
Lieutenant Morrissey in company with Corporal McGowan and other State and City of Cumberland policemen went to the residence. They staked the place out, being inside of the premises in the evening hours at approximately 8:30 or around 8:00 o’clock, during the dark hours of the day. The police officers did observe an individual, who they would recognize as the Defendant in this case, Mr. Lloyd Franklin Davis, pop the sliding glass door as an entrance to the place, came into the premises, was arrested on the premises in company with two other individuals.
After being taken into custody, Mr. Davis was questioned by William F. Baker of the State’s Attorney’s Office, after having been fully advised of his constitutional warning. Mr. Davis did give a statement indicating his guilt both in the Pete Robb home which I have described and in two other premises, one being the home of Charles Steiner located at 625 Niagara Street, which was burglarized on the 29th day of January, 1974, and also the home of Jack Carter located 1045 Bishop Walsh Drive in the City of Cumberland, which burglary occured on the 6th of February. As I’ve indicated, Mr. Davis indicated both in an original statement given on Monday, February 11th, 1974, to Mr. Baker, and in a supplemental statement dated February 12th, Tuesday, February 12th, 1974. He indicated he was involved with the co-defendants; that he had broken these homes that he has plead guilty to in addition to other homes in the area during this period of time.
I might indicate to the Court that with regard to the Carter home it was property of the total value of....
BY THE COURT: He’s not pleading guilty to that is he?
MR. KELLY: I believed he was.
BY THE COURT: Yes, he is. That’s the sixth count.
MR. KELLY: Yes sir. With regard to the Carter property, Your Honor, the total value of the property removed from that home, which was broken during the dark hours of the day, was $890.00. Approximately $756.00 worth of that property has been recovered, leaving a total unaccounted for of $134.00. In addition, there was $75.00 damage to a door that was broken. With regard to the home of John W. Steiner, the total value of the property removed from those premises during the burglary that occurred on the 29th of January, ‘74, was $680.50. $100.00 of that property, that is a single diamond ring, has been recovered, leaving a total unaccounted for property loss of $580.50. And in addition there was $80.00 damage to the basement door. With regard to the Carl Pete Robb home, there was no property stolen inasmuch as the defendants were apprehended on the premises. However, there was $50.00 damage to a bedroom wall. There was no property, as I’ve indicated, taken from this premises.”

After hearing the above statement of the facts and ascertaining that appellant agreed with the statement, the court accepted appellant’s pleas of guilty. On April 24, 1974, the court imposed three consecutive five-year sentences.

I

The principal constitutional question raised by appellant, based upon our decision in English v. State, 16 Md. App. 439, 298 A. 2d 464 (1973), cert. granted, 268 Md. 748, dismissed July 3, 1973, is that prior to the acceptance of his guilty pleas he was not informed by Judge Naughton that if he elected to stand trial and did not take the witness stand no inference of guilt could be drawn from his failure to testify.

In English v. State, supra, we quoted from Malloy v. Hogan, 378 U. S. 1, 8 (1964) that the meaning of the privilege is “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.” We then stated as follows:

“Therefore, in order for an accused to waive the privilege against self-incrimination as it applies to his trial on a criminal charge he must understand that he has the right not to testify and that no unfavorable inference may arise from his not testifying. Unless the record affirmatively shows that he understood this privilege and waived it in the constitutional sense, acceptance of his plea of guilty is not effective.”

First we observe that our decisions in English and in Williams v. State, 10 Md. App. 570, 271 A. 2d 777 (1970), and Silverberg v. Warden, 7 Md. App. 657, 256 A. 2d 821 (1969) placed Maryland in the minority of jurisdictions which adhere to the view that the decision of the Supreme Court of the United States in Boykin v. Alabama, 395 U. S. 238 (1969) requires some articulation to the defendant that a guilty plea constitutes a waiver of the Fifth Amendment right against self-incrimination and the Sixth Amendment rights to a jury trial and to confront one’s accusers. Indeed, the United States Courts of Appeals which have addressed this issue are unanimous that under Boykin specific questions about the waiver of these rights are not required.

Supporting the Maryland position, however, is the leading California case of In re Tahl, 1 Cal. 3d 122, 132-33, 81 Cal. Rptr. 577, 460 P. 2d 449 (1969), cert. denied, 398 U. S. 911 (1970) where the Supreme Court of California in an opinion by Justice Mosk interpreted Boykin to require:

“That each of the three rights mentioned — self-incrimination, confrontation and jury trial — must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.”

See also, People v. Jaworski, 194 N W.2d 868 (Mich. 1972) where the Supreme Court of Michigan held that “the record must show that the defendant has been informed of each and all of the three constitutional rights he waives on pleading guilty;” and see, Williams v. State, 325 N.E.2d 827 (Ind. 1975); State, ex rel Jackson v. Henderson, 255 So. 2d 85 (La. 1971); State v. Darling, 506 P. 2d 1042 (Ariz. 1973), but see, State v. Carmen, 506 P. 2d 668 (Ariz. Ct. of App. 1973).

Even where, as in Maryland, articulation of the three constitutional rights is mandated, there is no prescribed ritual binding upon trial courts with respect to the statement of these constitutional rights. The Supreme Court of Michigan in the case of People v. Butler, 195 N.W.2d 268 (1972) relied upon the rule of substantial compliance and stated that logically the question might be approached in two different ways:

“First, ‘you must advise the defendant of substantially all of his rights, ’ or second, ‘you must substantially advise defendant of all of his rights.’ ”
“The cases hold that a defendant must be substantially advised of each of his rights.”

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

II

Appellant concedes a “strong factual basis” for the guilty plea to count six which alleged nighttime burglary of the dwelling of Jack Carter at 1045 Bishop Walsh Drive, Cumberland, Maryland, in violation of Art. 27, § 30 (a). He contends, however, that there is no such support for counts one and nine alleging the same offense with respect to the dwellings of Charles Steiner located at 625 Niagara Street, Cumberland, Maryland) on January 29, 1974 (count one) and of the dwelling of Carl Pete Robb located at 716 Winifred Road, Cumberland, Maryland, on February 11, 1974 (count nine).

Article 27, § 30 (a) entitled “Breaking dwelling with intent to steal or commit felony” provides:

“(a) Every person, his aiders, abettors and counsellors, who shall break and enter any dwelling house in the nighttime with intent to steal, take or carry away the personal goods of another of any value therefrom shall be deemed a felon, and shall be guilty of the crime of burglary.”

From the factual statement related to Judge Naughton by the Assistant State’s Attorney, heretofore quoted in full, it is abundantly clear that appellant was literally “caught in the act” of burglarizing the home of Mr. Robb in the nighttime as a result of a' “tip” which had been received by Lieutenant Kenneth Morrisey of the Cumberland Police Department. Appellant argues that no property was taken and also that the record is silent as to whether there was any personal property on the premises. The State, in its explanation of the facts to the court, made the following statement with respect to the Robb home:

“With regard to the Carl Pete Robb home, there was no property stolen inasmuch as the defendants were apprehended on the premises. However, there was $50.00 damage to a bedroom wall. There was no property, as I’ve indicated taken from this premises.”

The clear implication of the above is, of course, there was personal property on the premises and that the presence of the police on the scene precluded its being stolen.

It is also clear that the factual basis for count one was provided by the appellant’s inculpatory statements to the police after his apprehension at the home of Mr. Robb and the police verification of the burglary. It is true that count one identifies the dwelling as that of Charles Steiner and that, in describing the damage to the premises entered and the description of the value of the property stolen, the Assistant State’s Attorney identified the dwelling involved in count one as “the home of John W. Steiner” (not Charles Steiner). Earlier, however, the State had disclosed to the court that when appellant was apprehended he made an inculpatory statement “indicating his guilt both in the Pete Robb home which I have described and in two other premises, one being the home of Charles Steiner located at 625 Niagara Street which was burglarized on the 29th day of January, 1974.. . .” (Emphasis added.) It is patent that the subsequent reference to the home of “John W. Steiner” was simply an inadvertence; and, in any case, a misidentification of the owner of burglarized premises would not affect the factual basis for a guilty plea to the crime of burglary.

Judgments affirmed.

Gilbert, J.,

dissenting:

I adopt the words of Mr. Justice Holmes in Northern Sec. Co. v. United States, 193 U. S. 197, 400, 24 S. Ct. 436, 468, 48 L. Ed. 679, 726 (1904), that:

“. . . [Although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it.”

This Court, speaking through Chief Judge Orth in English v. State, 16 Md. App. 439, 298 A. 2d 464 (1973), cert. granted 268 Md. 748, dismissed July 3, 1973, after quoting from our summary in Williams v. State, 10 Md. App. 570, 571-72, 271 A. 2d 777, 778 (1970), analyzing Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), went on to point out at 445-46 that:

. . [T]he accused has the right to testify in his own behalf. This is a statutory right in this jurisdiction. Code, Art. 35, § 4. Although he is a competent witness, he is not a compellable witness under the statute, nor could he be, for to make him so would violate the guarantee against self-incrimination. Thus, the constitutional right against compulsory self-incrimination adheres to the accused tendering a plea of guilty with respect to his right not to testify at the trial which the plea waives. We believe that it is in this context that Boykin refers to the privilege against self-incrimination guaranteed by the Fifth Amendment as involved in a waiver that takes place when a plea of guilty is offered in a state criminal trial. 395 U. S. at 243. The Fifth Amendment privilege against self-incrimination means ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.’ Malloy v. Hogan, 378 U. S. 1, 8. Therefore, in order for an accused to waive the privilege against self-incrimination as it applies to his trial on a criminal charge he must understand that he has the right not to testify and that no unfavorable inference may arise from his not testifying. Unless the record affirmatively shows that he understood this privilege and waived it in the constitutional sense, acceptance of his plea of guilty is not effective. ’’(Emphasis supplied). (Footnote omitted).

In the instant case the majority injects into the Maryland law relative to guilty pleas, a doctrine not heretofore followed in this State, insofar as such pleas are concerned. They style their newly discovered panacea, “substantial compliance”. To underpin the invoking of the “substantial compliance” doctrine, the majority rely upon the trial judge’s 1) informing the accused that the accused did not have to take the witness stand unless he desired to do so, and 2) that if he did not choose to take the stand, “the prosecuting attorney ... [could] not comment or make reference to ... [the accused’s] failure to testify.” Seemingly conceding, but not articulating that those two reasons either individually or jointly fail to amount to “substantial compliance”, the majority seize upon the trial judge’s advising the accused that the accused was presumed innocent until proven guilty beyond a reasonable doubt. The majority then add the three reasons together and conclude that, in the aggregate, there has been “substantial compliance”. As a caveat to the holding, trial judges are admonished that it is “preferable” that the defendant be informed that his failure to testify “may not be used as an inference to be weighed on the issue of guilt.”

It seems to me that the majority opinion has the effect of eroding English, supra, and establishing a case by case approach. The Bench and Bar alike no longer may home in on English, a well lit beacon, to guide them through the constitutional maze surrounding a plea of guilty. The trial court, the advocate and the accused are now cast adrift without a rudder. The majority opinion both saps English and extinguishes its bright light.

Chief Justice Vinson, in a dissenting opinion in Trupiano v. United States, 334 U. S. 699, 716, 68 S. Ct. 1229, 1238, 92 L.Ed. 1663, 1675 (1948), stated:

“At best, the operation of the rule which the Court today enunciates for the first time may be expected to confound confusion in a field already. replete with complexities.”

In my view the late Chief Justice Vinson may well have been writing about the instant case.

As I see it the majority equate the fact that an accused, must be informed that the trier of fact may not draw an unfavorable inference from the accused’s failure to testify, with the accused’s being told that a prosecuting attorney will not be allowed to make reference to a failure to testify. Precisely how the two situations are analagous escapes me. “I do not understand; I pause; I examine,” but I still do not comprehend.

Furthermore, it is to be noted that the trial judge informed Mr. Davis that:

“. . . [I]n order to make certain that you are entering your pleas of guilty to these three counts willingly, freely, knowingly and with some degree of intelligence, it is necessary that I ask you a few questions and determine that fact.” (Emphasis supplied).

The law, as I understand it, does not provide that an accused enter the plea with “some degree of intelligence,” but rather that the plea be intelligently made. Williams v. State, supra. If we, henceforth, are called upon to ascertain, in each case, whether the accused, “with some degree of intelligence,” made and understood the full effect of a guilty plea, we tread upon a pit of quicksand, and the pit is bottomless. If the measure of intelligence required to enter a constitutionally valid plea of guilty is “some degree of intelligence,” I fail to see how any such plea can be constitutionally infirm. Unless the accused is, in the vernacular “a vegetable,” it is difficult to visualize a human being who does not possess “some degree of intelligence.”

Without belaboring the issue needlessly, it follows that I would hold that the trial judge failed to comply with the rule of English, supra, and therefore, committed reversible error. I would reverse and remand for a new trial.

A final word is in order. If this Court is of the opinion that English is to be buried, then we should, at the very least, provide it with a decent funeral, and not merely scuttle it by inference.

      . See, Wade v. Coiner, 468 F. 2d 1059, 1061 (4th Cir. 1972); United States v. Frontero, 452 F. 2d 406, 415 (5th Cir. 1971); McChesney v. Henderson, 482 F. 2d 1101 (1973); Todd v. Lockhart, 490 F. 2d 626, 628 n. 1 (8th Cir. 1974); Wilkins v. Erickson, 505 F. 2d 761 (9th Cir. 1974); Stinson v. Turner, 473 F. 2d 913, 915-16 (10th Cir. 1973). The Court of Appeals for the 2nd Circuit, in United States ex rel Hill v. Ternullo, 510 F. 2d 844, 845 (1975) stated that the constitutional issue had not there been presented and we “postpone for the present... a decision on this question.”

      . The weight of authority in State courts is, however, to the contrary. See, Edwards v. State, 186 N.W.2d 193 (Wis. 1971); State v. Turner, 183 N.W.2d 763 (Nebr. 1971) and see numerous cases cited in the concurring opinion of Justice Summers of the Supreme Court of Louisiana in the State v. Johnson, 257 So. 2d 654 (1972). In addition, the South Dakota Supreme Court appears to have retreated from its statement in Nachtigall v. Erickson, 178 N.W.2d 198 (1970) that “it is now settled as a principle of the constitutional law that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial — and an understanding of the nature and consequences of the plea.” In Merrill v. State, 206 N.W.2d 828 (1973) the same court stated that there is “a growing body of authority for the proposition that Boykin does not require the record to show an express enumeration by the court, nor an express waiver by the defendant of the constitutional rights mentioned in Boykin. . . .” Furthermore, the court said, referring to this “growing body of authority,” “[w]e find this latter interpretation of Boykin to be persuasive.”

      . The Supreme Court of California likewise pointed this out in In re Tahl, supra, 81 Cal. Rptr. at 584:
      “This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.” (Emphasis added.)

      . See, American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Function of the Trial Judge, § 4.2, approved draft 1972; and Report and Recommendations, Joint Committees of Maryland Judicial Conference and Maryland State Bar Association to implement the American Bar Association Standards for Criminal Justice, “Pleas of Guilty” approved by the Maryland Judicial Conference, April 1974.

      . The appeal was apparently dismissed because it had been improvidently granted.

      . Michel Eyquem De Montaigne (1533-1592), Inscription for his library.

      . An opinion that I do not share.


author: Moore, J.,

text:
    EVELYN D. BADEN v. REGINA B. CASTLE et al.
    [No. 962,
    September Term, 1974.]

      Decided September 8, 1975.

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

      Jess Joseph Smith, with whom were Burrough & Smith on the brief, for appellant.

      Charles M. Cockerill, with whom was L. David Ritter on the brief, for appellee, Home Bank of Sutton, West Virginia.

      Neil H. Koslowe, with whom were Irving Jaffe, Acting Assistant Attorney General, George Beall, United States Attorney, and Morton Hollander on the brief, for appellee, Administrator, United States Small Business Administration.

       Note: Certiorari denied, Court of Appeals of Maryland, November 21,1975.

   Moore, J.,

delivered the opinion of the Court.

This appeal arises out of a controversy over 8.51 acres of real property in Prince George’s County, improved by a dwelling and encumbered by a mortgage to the First National Bank of Southern Maryland and by two deeds of trust securing the Small Business Administration of the United States of America and The Home Bank of Sutton, West Virginia. The adversaries are a mother, age 71 at the time of the proceedings below, and daughter, then 51 — both of whom have had substantial experience in the real estate title field as title abstractors. The principal determination reached by the Chancellor (Couch, J.) in an action for specific performance and other relief brought by the mother, Evelyn D. Baden, against the daughter, Regina Baden Castle and other parties, turned upon the court’s interpretation of a deed dated August 31, 1964 between Mrs. Baden, her husband, Ambrose A. Baden, Sr. and their daughter Regina. This was a conveyance of two separate parcels, the first consisting of the 8.51 acres and the second of 34.16 acres. There was a difference between the granting clause and the habendum clause. The former granted and conveyed unto the daughter, “her heirs and assigns” the described realty “in fee simple.” The habendum clause, however, reserved to Mr. and Mrs. Baden a life estate and contained a covenant by Regina to join in a conveyance with her parents should the latter desire to convey it during their lifetime. The printed language of the habendum clause was as follows:

“TO HAVE AND TO HOLD the aforesaid pieces or parcels of ground and premises above described or mentioned, and hereby intended to be conveyed, together with the rights, privileges, appurtenances, and advantages thereto belonging or appertaining unto and to the only proper use, benefit and behoof forever of the said . .

Beneath the printed words, the following was typewritten:

“Ambrose A. Baden Sr. and Evelyn D. Baden, his wife reserve a life estate. Also said Regina Baden Barkman covenants and agrees that if at any time during the lifetime of said Ambrose A. Baden Sr. and Evelyn D. Baden should they desire to convey said property she will join in said conveyance.”

After the death of her husband in December, 1972, Mrs. Baden entered into a contract of sale for the 8.51 acres with a corporate organization known as Prince George’s Homes, Inc., of which her son Mark was president and in which her daughter-in-law, Mark’s wife, owned a stock interest. Mrs. Baden was herself a vice president of the corporation but testified that she owned no stock. At the time she entered into the contract with Mark’s company, both he and his wife were residing with her in a residence located on one acre of the property. Her daughter, Regina Castle, refused to join in the contract of sale. Prior to the execution of the contract, she and Mr. Castle had encumbered the parcel with the aforementioned two deeds of trust, aggregating in total principal amount the sum of $55,000 (n. 1, supra). When Mrs. Baden brought suit below to compel the daughter to join in the sale and for an Order that the 8.51 acres be transferred “free and clear of the Deeds of Trust and that the Deeds of Trust are null and void except as between the parties thereto,” the daughter and her husband interposed a general denial and also responded with a cross bill to impress a constructive trust in Regina’s favor upon the 8.51 acres.

After two days of hearings in July, 1974 and oral argument on August 30, 1974, the Chancellor filed a memorandum opinion and decree on September 19,1974. He granted the “specific performance” relief requested by Mrs. Baden, ordering the daughter to join in a conveyance to Prince George’s Homes, Inc. but denied Mrs. Baden’s prayer seeking to have the conveyance free and clear of the deeds of trust in favor of the Small Business Administration and the Home Bank of Sutton, West Virginia. The court also denied the daughter’s prayer that a constructive trust be impressed upon the property. From this decree, Evelyn Baden and Regina Castle noted appeals to this Court. Mrs. Castle, the original appellant, did not file a brief and, on April 1, 1975, her appeal was dismissed. The case is before us, therefore, with Evelyn Baden (originally a cross-appellant) as appellant, and Regina Castle, the trustee under the deeds of trust, the Home Bank of Sutton and the Small Business Administration as appellees.

Mrs. Baden urges that the lower court erred in its application of the doctrine of equitable estoppel and that she should be allowed to transfer the property free and clear of the deeds of trust.

The Home Bank of Sutton, West Virginia contends (a) that the evidence was not legally sufficient to support the decree compelling specific performance, (b) that Mrs. Baden waived any rights she had to convey the property unencumbered by the deeds of trust and (c) that she is estopped from conveying the property unencumbered. The Small Business Administration argues (a) that Mrs. Baden concealed her life estate from the mortgagees and is estopped from avoiding the deeds of trust and (b) that under the doctrine of unclean hands the Chancellor properly denied her prayer that she be permitted to convey the 8.51 acres unencumbered.

I

In determining the legal effect of the deed dated August 31, 1964, the court below considered the circumstance that although the granting clause conveyed a fee simple interest, the habendum clause reserved a life estate to the grantors, with power to convey during their lifetime. The court’s opinion then stated:

“Plaintiff [Mrs. Baden] contends that the granting and habendum clauses may be construed together in order to determine what the parties intended and having done such the deed may be specifically enforced. The Defendant argues that the two clauses are repugnant and that even in the event they can be reconciled by looking at the intentions of the parties, the power to dispose of the property reserved by the life tenants could only be exercised during the joint lifetimes of Ambrose and Evelyn Baden.”

The Chancellor recognized that the early decisional law in Maryland, as traced in Winter v. Gorsuch, 51 Md. 180 (1879), holds that where there is a conflict or repugnancy between the granting and habendum clauses in a deed, the granting clause must control and the habendum clause rejected. The court there quoted from Budd v. Brooke, 3 Gill 198 (1845): “. . . where the habendum is repugnant and contrary to the premises it is void, and the grantee shall take the estate given in the premises.” The court in the instant case felt, however, that this rule was “qualified” by later decisions evidencing a “more modern approach.” In Winter, the granting clause conveyed a fee simple interest and the habendum conveyed a life estate. The Court of Appeals held:

“Here then by the premises of this deed an unqualified and absolute interest is given to the daughter, and by the habendum that interest is cut down to a life estate with contingent limitations to her children and the heirs of the grantor. The repugnancy and conflict between the two is apparent and irreconcilable, and, in our opinion, there could not be a plainer case for the application of the doctrine above stated. The limitations in the habendum clause must therefore be rejected, and the absolute estate granted by the premises to the daughter must prevail.” (p. 186).

In the instant case, two decisions were relied upon by the Chancellor to support his conclusion that the Maryland rule had been changed: Weinbeck v. Dahms, 134 Md. 464 (1919) and Beranek v. Caccimaici, 157 Md. 144 (1929), which the trial court stated was “factually similar” to the present case. We do not agree. In Weinbeck the granting clause itself conveyed an absolute interest but first reserved to the grantor the power to convey, sell, or dispose of the property during the term of her natural life. Moreover, the court observed that “[t]he habendum clause of the deed follows exactly the language of the granting clause.” Indeed, the Court of Appeals in Weinbeck reaffirmed the rule set down in Winter v. Gorsuch, supra, when it stated:

“It is proper to say that there can not be any dispute as to the proposition that where there is a repugnancy between the granting clause of a deed and the habendum, where an estate which has been granted in fee is sought to be cut down to a lesser estate, or limited by conditions, that such attempt will be rejected as void, being in derogation of the absolute estate previously granted.” (p. 466).

In Beranek, the granting clause conveyed a fee simple estate to a son and daughter as tenants in common, subject, however, to a life estate in the grantor and a reservation of the power “to mortgage, sell or otherwise dispose of or encumber” the devised lot. Again, as in Weinbeck, the court noted that “[t]he language of the grant is repeated in the habendum, and there is no repugnancy nor conflict anywhere with the operative part of the deed.”

We find Beranek and Weinbeck, supra, to be inapposite. Neither case presents a conflict between the granting and the habendum clauses. Even were this not the situation, we find no support for the Chancellor’s conclusion that there has been a departure from the traditional Maryland rule. On the contrary, since the decision in Winter v. Gorsuch in 1879, the Court of Appeals has often restated and reaffirmed the rule. Marden v. Leimbach, 115 Md. 206 (1911) and cases there cited; Literski v. Literski, 166 Md. 641 (1934); Adams v. Parater, 206 Md. 224 (1955); Green, Tr. v. Eldridge, 230 Md. 441 (1963); D.C. Transit Systems v. S.R.C., 259 Md. 675 (1970); Lazenby v. F. P. Asher, Jr. & Sons, 266 Md. 679 (1972). In Marden v. Leimbach, supra, the Court stated:

“It is, of course, elementary that where there is a conflict between the granting and habendum clauses, the former • will prevail. A familiar illustration of such a repugnancy is where the granting clause is in fee and the habendum is only for life. Winter v. Gorsuch, supra. But there is no such conflict unless the habendum, divests the estate granted and substitutes another.” (Citations omitted.) (p. 209).

In 1970, the Court of Appeals quoted the above statement of the rule in Marden in the case of D.C. Transit Systems v. ■ S.R.C., supra. Again, in the 1972 case of Lazenby v. F. P. Asher, Jr. & Sons, supra, Judge Smith quoted “some of the rules for construction of deeds [which] were summed up for the Court by Chief Judge Bruñe: in Adams v. Parater, supra, including the following:

“If, however, we entertained doubts as to the proper construction of the deed and were forced to rely upon a technical rule of construction, we believe that the rule which, in case of repugnancy, gives effect to the first of two conflicting clauses in a deed, should be followed in this case. [Citing cases.] The most frequent application of this rule is in cases where the granting clause is held to prevail over the habendum. . . . The reason for the rule suggested by Tiffany, Real Property, 3rd Ed., Sec. 979, seems clearly applicable and pertinent here — that it is ‘to prevent the revocation by implication, by a later clause, of an earlier provision made in clear, explicit and unambiguous words, such a revocation being required to be in terms no less clear and explicit than those of the earlier provision.’ ” Id. at 236-37. (Underscoring added.)

Ordinarily, therefore, under the strict Maryland common law rule, the habendum clause here would have been disregarded since it reserved a life estate in the grantors notwithstanding the provisions of the granting clause whereby they granted title to the property in fee simple. This habendum clause, however, contained a specific independent covenant by the grantee, who also executed the deed, whereby she agreed that “if at anytime during the lifetime of said Ambrose A. Baden, Sr. and Evelyn D. Baden should they desire to convey said property she will join in said conveyance.”

In March, 1973, the grantee was formally advised by counsel representing the surviving grantor of the latter’s desire to convey the property. This letter, dated March 13, 1973, was addressed by Mrs. Baden’s counsel to Mrs. Regina B. Castle, Box 3312, Upper Marlboro, Maryland and read as follows:

“Dear Mrs. Castle:
This office has been retained to represent Mrs. Evelyn D. Baden in the sale of her property, parcel #1 containing 8.51 acres as recorded in Liber 3031, Folio 482 in the Land Records of Prince George’s County, Maryland.
Mrs. Baden has a purchaser for the noted property and it is her desire to convey said property to the purchaser.
Inasmuch as you have heretofore agreed, by deed recorded in Liber 3031, Folio 482, to join in the conveyance of said property at any time, you are hereby requested to sign a deed conveying the subject property. The deed may be signed in my office at any time.”

It is plain from the above evidence that the grantee was informed (1) that the grantor had a purchaser for the property and (2) it was her desire to convey it. The grantee’s commitment to execute a conveyance was unconditional. It was also specifically enforceable and the Chancellor properly ordered compliance with its provisions. Browne v. Browne, 1 Harr. & J. 430 (1803) (conditional intrafamilial covenant to convey specifically enforced); see also Cataldo v. Compiano, 76 N.W.2d 214 (Iowa, 1956) (vendor’s conditional option to repurchase specifically enforced upon occurrence of condition). We put aside the contentions made by the appellee, Home Bank of Sutton, West Virginia, that the evidence adduced on behalf of Mrs. Baden was not legally sufficient to support the lower court’s decree requiring Mrs. Castle to join in the conveyance. It is true, as appellee argues, that the contract of sale with Prince George’s Homes, Inc., although identified, was not received in evidence; and that Mrs. Baden testified that she did not remember the terms of the contract or the settlement date; and that a copy of the deed was not offered in evidence. On the other hand, however, Mrs. Castle herself disclosed on direct examination her knowledge of the existence of the contract and, indeed, testified that she had seen it:

“Q Did you have a conversation with Mr. Burroughs [attorney for Mrs. Baden] regarding the contract on the 8.51 acres?
A Yes.
Q And did Mr. Burroughs show you the contract?
A Yes, he did.
Q And who was the contract with, if you know?
A It was with Mark Baden.
Q And who is Mark Baden?
A P. G. Homes, Inc.
Q And who is Mark Baden?
A Mark Baden is my brother.”

Furthermore, Mrs. Baden testified that the contract of sale was with Prince George’s Homes, had been prepared by Mark and that she had a copy of it at home. She also told the Chancellor that, since the execution of the agreement, the company (intending purchaser) had been paying all the utility bills and the mortgage installments to First National Bank.

Case authority urged upon us by the appellee bank relating to the requirements for specific performance of a contract for the sale of real estate, Beck v. Bernstein, 198 Md. 244 (1951); Tarses v. Miller Fruit and Produce Co., 155 Md. 448 (1928) and Kalavan v. Hamburger, 178 Md. 218 (1940) are inapposite. The contract here that was required to be specifically enforced — and properly so — was the covenant of Mrs. Castle to join in a conveyance of the property at any time the grantors desired to do so. This covenant was contained in a deed which, according to the undisputed testimony of Mrs. Baden, was prepared by Mrs. Castle herself — • an individual experienced in title and mortgage transactions. (According to her own testimony, she was a title examiner at the courthouse in Upper Marlboro for ten years and, later, an officer in The Atlantic Mortgage Company for some two years.) Furthermore, the court had before it the testimony of Mrs. Baden concerning the inclusion of the covenant in the deed:

“I had to put that in the deed because that is all I had in the world was that home and I had to protect myself, so that is why I put in there that if at any time, I had to sell, she was the only conveyance and she was perfectly willing to do it.”

Accordingly, although for reasons other than those stated in the opinion of the Chancellor, we conclude he did not err in directing Mrs. Castle to join in the conveyance of the 8.51 acre tract to Prince George’s Homes, Inc.

II

Turning to the contention of Mrs. Baden that the lower court erred in its application of the doctrine of equitable estoppel and that her prayer to transfer the property free and clear of the SBA deeds of trust should have been granted, we first point out that under Maryland Rule 1086 when an action has been tried by the lower court without a jury, we will review the case upon both the law and the evidence; but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous, due regard being given to the opportunity of the trial court to judge the credibility of the witnesses.

As previously indicated, Mr. and Mrs. Castle obtained a Small Business Administration loan in the sum of $25,000 from the Home Bank of Sutton, West Virginia on or about March 11, 1971, secured by a deed of trust on the 8.51 acre tract. The Bank did not obtain the signatures of Mr. and Mrs. Baden on the deed of trust. The Chancellor concluded that the Bank was “apparently unaware” of the Badens’ interests “as holders of a life estate,” else their signatures would have been obtained.

In this respect, the record is frustratingly deficient. A Certificate of Title to the 8.51 acre tract was prepared by Victor L. Edwards, Esq. at the request of Regina Castle in connection with the first SBA loan in March, 1971. According to Mr. and Mrs. Castle, the certificate was transmitted to them by Mrs. Baden and delivered to the attorney representing the lending institution in West Virginia. An envelope addressed to Mrs. Castle in the handwriting of Mrs. Baden, bearing her return address, and purporting to be the envelope in which the certificate was mailed, was received in evidence by the Chancellor. Upon objection of Mrs. Baden’s counsel, however, the certificate itself was not received. Whether the certificate failed to disclose the typewritten contents of the habendum clause, as it should have, is unclear.

Similarly, when the second SBA loan (in the sum of $30,000) was obtained by Mr. and Mrs. Castle on August 2, 1972, no signatures were obtained from Mr. and Mrs. Baden. This time, a “Continuation of Title” was provided the lending institution on the letterhead of Suburban Abstract Corporation, Suitland, Maryland, signed by Mark Baden identified by the trial court as “related to the plaintiff as her natural son.” In its entirety, the “Continuation” read as follows:

“A continuation of title abstract from a Deed of Trust dated 3-11-71 recorded 3-19-71 in Liber 3924 Folio 263 from Eugene D. Castle and Regina B. Castle to Jeniver J. Jones, trustee for Loan securing the Home National [sic] Bank of Sutton in the amount of $25,000.00 indicates nothing filed of record in the land records office of the Clerk of Circuit Court for Prince Georges County, Maryland Our search of the records indicate no liens or judgments filed.
Our search of records is good through July 17, 1972.”

Patently, if the earlier Certificate of Title made no disclosure of the Badens’ interest in the tract, the void was not filled by the Continuation of Title. In this state of the record, the Chancellor observed: “As a collateral matter the Court is satisfied that the Bank acted with reasonable diligence under the circumstances where the parties were in neighboring states and information concerning record title was provided through an attorney in Maryland by way of the interested parties to the West Virginia bank.”

While, perhaps, issue might be taken with the conclusion that the Bank acted with “due diligence,” this aspect of the case is enormously overshadowed by the evidence before the court that Mrs. Baden — seeking equitable relief — was estopped from obtaining it.

The testimony at trial was in conflict as to whether Mrs. Baden was aware of the deeds of trust which had been placed upon the property by her daughter and son-in-law. Mrs. Castle testified that the first deed of trust was placed in the hands of her mother before it was put on record and that the mother made a telephone call to her son, Mark Baden, who was also then employed in real estate title work, to inquire what obligation would arise if she and Mr. Baden allowed the deed of trust to be put on record. She further testified that Mark Baden responded that since she did not have to sign the obligation the matter was of no concern to her because after their death the property would go to Mr. and Mrs. Castle. Edward Castle also testified that in late 1971 he and his wife discussed with Mrs. Baden their need for additional insurance to cover the first SBA loan and “Mrs. Baden called the Neave Company down in Waldorf and arranged to put the $25,000 on it. The reason for this was that she had to have it for the bank.”

On the other hand, Mrs. Baden — who had worked from 1949 to 1969 as a title abstractor — testified that she was unaware of the existence of the loans upon the property until after their recordation when her daughter Regina “let it slip out that she had put a mortgage on.” Her son, Mark Baden, also testified that his mother called him when she first discovered the existence of the loans and it was his “impression” that she did not know that the trusts had been recorded. Earlier, Mrs. Baden had testified that she never knew there was an SBA loan on the. property, that she learned about the first loan in 1971 and Regina assured her it would be released and that she learned of the second loan in November, 1972 when her husband was. in the hospital. She admitted that she took no action with respect to either deed of trust until the present suit was filed on March 22, 1973.

In evaluating the testimony, the Chancellor found:

“From the testimony presented at the hearing, it is apparent to the Court that the Plaintiff, Evelyn Baden, was fully aware of the negotiations going on between the Defendant, Regina B. Castle, her daughter who lived with her, and the bank in West Virginia. This is further corroborated by testimony demonstrating that the Plaintiff asked not to be named as a party to the Deed of Trust, although Plaintiff then held a life estate in the property, and further by Plaintiffs discussions with her son, Mark Baden, concerning the legal effect of recording the Deeds of Trust without her signature. Such actions alone would be sufficient to show that the Plaintiff took an active part in misleading the Bank, but testimony also shows that Certificate of Title information was passed through the Plaintiff to the Defendant for use by the Bank in determining record title. Additionally, Plaintiff increased amounts of insurance covering the subject property following discussions with her son regarding the Deeds of Trust, presumably to insulate the property to a greater extent once additional obligations were placed on the property. As a collateral matter the Court is satisfied that the Bank acted with reasonable diligence under the circumstances where the parties were in neighboring states and information concerning record title was provided through an attorney in Maryland by way of the interested parties to the West Virginia bank. Therefore, the Court is of the opinion that it would only be equitable to retain the Deeds of Trust upon the property in favor of the Home Bank of Sutton, West Virginia, and the Small Business Administration in light of the testimony at the hearing and authority cited.” (Underscoring added.)

The Chancellor relied upon the cases of Machovec v. Shipley, 171 Md. 339 (1936) and Savonis v. Burke, 241 Md. 316 (1966) in support of his holding that under the principle of equitable estoppel Mrs. Baden should not be permitted to transfer the 8.51 acres unencumbered by the two deeds of trust.

In Savonis, supra, Judge Barnes, writing for the Court, observed that equitable estoppel operates as a technical rule of law to prevent a party from asserting his rights where it would be inequitable and unconscionable to assert such rights. The Court, also in Savonis, quoted the definition of equitable estoppel as contained in Pomeroy’s Treatise on Equity Jurisprudence (5th ed., vol. 3), § 804, p. 189, adopted by the Court of Appeals and continuously applied by it. The definition is as follows:

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed, either of property, or contract or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.”

As the Savonis opinion points out, normally mere silence would not work an estoppel. However, if a party “who is interested in the transaction disclaims title, and the representation is relied on by another who is ignorant of the true state of the title, even though it may be a matter of public record, then equitable estoppel may apply.” Id. 241 Md. at 320. Thus, in Machovec v. Shipley, supra, the Court of Appeals held that estoppel barred a suit in ejectment brought by a remainderman who concealed her interest from the parties whom she sought to eject.

In the instant appeal there was substantial evidence to support the Chancellor’s findings that Mrs. Baden “took an active part in misleading the bank” and, at the very least, knowingly and voluntarily allowed the property, in which she had a power of conveyance, to be encumbered by the two deeds of trust and was fully aware of the amounts of the obligations involved. We do not find that his conclusions were “clearly erroneous”, within the meaning of Rule 1086.

Before this Court, Mrs. Baden attempts to distinguish Machovec on the ground that in that case “there were face-to-face meetings between the parties. . . .” We do not consider warranted such a narrow reading of Machovec. Nor do we accept the contention of Mrs. Baden that there was here no demonstration on the part of the appellee bank of reliance “on a representation or misrepresentation of the estopped party.” The record supports the Chancellor’s conclusion that she took an active role in the processes that resulted in the execution of the deeds of trust; and her contention that even assuming arguendo a representation or misrepresentation was made by her, it was made to her daughter, Mrs. Castle, rather than to the bank, must be rejected out of hand.

Decree affirmed; costs to be paid by appellant, Evelyn D. Baden.

      . The other defendants were the son-in-law, Eugene D. Castle, the Administrator of the Small Business Administration, the Home Bank of Sutton, West Virginia, and the Trustee under deeds of trust secured by the 8.51 acres executed by Mr. and Mrs. Castle dated March 11, 1971 and August 2, 1972. It appears that Regina and Eugene Castle obtained two SBA loans for the reconstruction of a golf course in West Virginia operated by them. The first loan was for $25,000 and the second $30,000. The mortgage to the First National Bank was approximately $30,000 at the time of hearing.

      . Regina was one of six children. In 1964 her married name was Barkman. Later divorced, she married Eugene Castle in 1970. The property conveyed to her was originally part of a 144 acre tract which her parents, Evelyn and Ambrose Baden, had acquired in 1936. Beginning in 1954, the Badens gave shares of the acreage to their children as they came of age, in parcels of approximately twenty acres. Regina had received a conveyance of the 8.51 acre tract on June 30, 1962 but deeded it back to her parents on November 6, 1962, in order that they might obtain a construction loan for building a new home on one acre of the tract. The loan was obtained and the deed of trust executed on June 14, 1963. The record contains a number of deeds, baffling in extent, with respect to this and other parcels of the original 144 acre tract.

      . The record discloses that 30 of the 34.16 acres were conveyed on October 4, 1968 to one Myrtle L. West, “all parties [the Badens and their daughter Regina and her husband] having joined in the conveyance.” Mrs. Baden testified that this second parcel was not adjacent to the first but was “way off from everything.” The sale to grantee West appears to have been made to assist financially a son, Mark Baden. The remaining 4.16 acres were subsequently conveyed by Mr. and Mrs. Baden and Regina Castle to Cornelius Baden, one of Regina’s four brothers. In her testimony below, Regina Castle agreed that her parents had a life estate in the 34.16 acre parcel and admitted that she signed the deed to Myrtle L. West. She explained her refusal to join in the deed for the 8.51 acres by stating: “I was only to convey that property if my mother and father should want it changed in their lifetime.”

      . According to Mrs. Baden, this residence was constructed on the one-acre parcel prior to Mr. Baden’s death at a cost in excess of $50,000. Her daughter Regina and her two children had lived with Mrs. Baden at her previous residence located on Rectory Lane in Upper Marlboro from 1961 until 1964 and also resided, until this litigation arose, with the mother at the new house located on Calvert Road. In April, 1973, prior to filing the instant suit against Regina, Mrs. Baden instituted eviction proceedings against her in District Court. On June 12, 1973 Mrs. Baden also obtained a District Court judgment against Regina for $2428.48 and costs.

      . This ruling was based upon principles of equitable estoppel, the Chancellor having found, contrary to Mrs. Baden’s testimony, that she was aware of the negotiations going on between the Castles and the Small Business Administration and took an active part in misleading the Bank.

      . In Marden, there was no inconsistency between the granting and habendum clauses; each conveyed an estate for life.

      . See also American Law of Property, Vol. III, § 12.47 (1952); Thompson on Real Property, Vol. 7, § 3136 (1962). But compare 23 Am.Jur.2d, Deeds, § 203-209 and Annotation, “Conflict Between Granting and Habendum Clauses as to Estate Conveyed,” 58 A.L.R.2d 1374 (1958) which states in its introduction: “The cases decided since publication of the annotation in 84 ALR 1054, here supplemented, show a strong and accelerating tendency to embrace what is ordinarily characterized as the ‘modern’ doctrine, to the effect that the real intention of the parties to a deed, if ascertainable from the instrument as a whole, whether with or without resort to a consideration of the attending circumstances, is to be given effect in regard to the estate conveyed despite conflicts or repugnancies between the granting and habendum clauses.”

      . There is no contention before us, as there was before the Chancellor that Regina Castle’s obligation to join in a conveyance subsisted only during the joint lives of the grantors. The Chancellor rejected this contention and, we think, did not err.

      . Counsel’s statement for services rendered for the certificate; in the sum of $55.00, was sent to Mrs. Castle at Gassaway, West Virginia.

      . Mrs. Baden testified that she used to do title work for Mr. Edwards but did not recall his ever doing any title work on the 8.51 acre tract. Mrs. Castle testified that Mr. Edwards called her “when the title was ready and the certificate of title was ready and I called my mother and asked her if she would pick it up and mail it to us. She mailed it to us in the envelope that we have here in the Court.”

      . We observe that no representative of the Bank or the SBA testified below and there is no evidence that title insurance was required by the lender or the Small Business Administration.