(116 A.) tinction contended for, and the weight of authority is against it. Farnham on Water and Water Rights, § 861; 40 Cyc. p. 636, § 3; 27 R. C. L. p. 1373, § 281. and on the Patapsco river to the gut of afore- | impressed with the reasonableness of the dissaid pond, then running to and binding on the tidewaters of said gut and pond 9 following courses and distances, which takes in a greater portion of the boundary line of the pond." His oral testimony as well as that of other owners as to ownership was admitted without objection. [3] Now, a caveator need not prove that he has any interest in the alleged vacant land. It is enough if he shows that the state has no title. "A caveat will not be dismissed merely because the caveator shows no interest." Patterson et al. v. Gelston, 23 Md. 432. [4] The Commissioner correctly observed that he must deal with this case exactly as if a stranger were the applicant for the patent. The state cannot grant Linthicum a patent, under a special warrant such as was applied for in this case, to land of which he is already the owner. A very enlightening discussion of this subject, with citations of cases, is found in note to Gouverneur v. National Ice Co. of New York, 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669. For reasons above set out, the order appealed from will be affirmed. Order affirmed, with costs to appellee. (140 Md. 38) ROBERTO v. CATINO et al., (No. 59.) (Court of Appeals of Maryland. Jan. 11, 1922.) [5] Besides, the prima facie presumption is that riparian proprietors of nonnavigable. Execution 256 (2)-Evidence held insufficient to show that sheriff was fraudulently streams own the soil covered by such rivers induced to sell property to satisfy judgment ad filium medium aquæ. This presumption for less than its value and without competiwas probably negatived as to Cook and Hantive bidding. cock by the evidence that their lines run to definite points in the water short of the center; but it holds good as to Shipley. Angell on Water Courses (7th Ed.) §§ 10 and 95. The implication of the language of the following Maryland cases is to the same effect: Browne v. Kennedy, supra; Day v. Day, supra; Gump v. Sibley, 79 Md. 168, 28 Atl. 977; Goodsell v. Lawson, 42 Md. 362; Shipley v. Western Md. R. R. Co., 99 Md. 133, 56 Atl. 968. See, also, 27 R. C. L. p. 1371, § 280. In a suit to annul an execution sale, evidence held insufficient to show that the sheriff was fraudulently induced to sell the property to satisfy a judgment for an amount much less than its value and without competitive bidding. 2. Evidence 574-Testimony as to cost of property held insufficient to establish fair market value. In a suit to annul an execution sale because of the inadequate price obtained, complainant's testimony as to what the property cost him held insufficient to establish the alleged market value thereof as against testimony of an perienced real estate broker, who was familiar with the property and had bought another property in the immediate neighborhood, and the as sessed valuation. [6] It is further urged by caveatee that there is a distinction, as to the rights of riparian owners, between a nonnavigable stream and a natural pond, and that a boundary upon a natural pond or lake carries title, not to its center, but only to low-water mark; and he cites five cases from Maine, Massachusetts, New York, and Ohio to support this view. The Massachusetts ordinance of 1647 made every lake of more than 10 acres extent public. The decisions of 'that state therefore necessarily denied that riparian ownership extended to the center of such lakes. The same may be said of Maine decisions, that state being governed by said to evidence of fraud. 3. Execution $335, obtained at execution sale of property valued at $3,132, against which there was an outstanding mortgage of $2,000, held not so grossly inadequate as to amount in itself barred by laches to object to inadequate price at which property was sold. ordinance of 1647, which was operative in 4. Execution 253 (2)-Judgment debtor held Maine, as that state was originally a part of Massachusetts. The New York case cited, Wheeler v. Spinola, 54 N. Y. 377, was virtually overruled by the later case of Gouverneur v. National Ice Co. of New York, 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669. The Ohio Case cited, Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828, does not support caveators' proposition. While it cannot be denied that the subject of the ownership of the beds of small lakes has been somewhat confused by conflicting decisions, we are not Where one whose property was sold to satisfy a judgment was was informed thereof, though he was in another state at the time, and returned within a year, but did not object to or question the regularity of the sale until he filed a bill to annul it more than 12 years and the auctioneers had died, the defense of afterward, after the purchaser, his attorney, laches may properly be invoked, even if he employed attorneys to assert his rights; they being his agents, whom he should have dismissed if they failed to do so. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Equity 72(1)-"Prejudice" necessary to This attachment, which was laid on the three laches defined. houses referred to, in due course ripened into a final judgment, and on March 26, 1908, execution issued on that judgment. On the 18th of April, 1908, the judgment was entered to the use of Salvatore Papio, and two days later the property attached was sold courthouse door in Baltimore city to Papio under the execution by the sheriff at the for $335, and later conveyed to him. Noth ing further was done until December 10, Appeal from Circuit Court No. 2 of Balti- 1920, when the bill of complaint in this case more City; H. Arthur Stump, Judge. Suit by Charles N. Roberto against Amedeo Catino and another, administrators of Salvatore Papio, deceased. From a decree dismissing the bill, complainant appeals. Af firmed. Argued before BOYD, C. J., and BRISCOE, URNER, STOCKBRIDGE, and OFFUTT, JJ. J. Wallace Bryan, of Baltimore (James Steele, of Baltimore, on the brief), for appellant. F. Stanley Porter and Wm. Curran, both of Baltimore (Mullikin & Porter, of Baltimore, on the brief), for appellees. OFFUTT, J. Charles N. Roberto in 1907 was in the saloon business in Baltimore, and he also acted as an agent for the sale of steamship tickets, and at the same time carried on in a small way a private banking business. At that time he had in his possession a considerable sum of money belonging to a number of persons, who intrusted it to him to keep for them or to transmit to their relatives in Italy. During the latter part of that year he claimed to have been robbed of $9,000 by three persons who came into his place of business and took the money from his safe. Shortly after that his depositors began to withdraw the money they had left with him, until in January, 1908, he had paid out all the money he possessed which was not sufficient to pay the demands of his creditors, and he then left Baltimore. He first went to Fairmount, W. Va., to collect a debt due him by a resident of that town, and from there went to Denver, Colo. During his absence indictments were found against him in the criminal court of Baltimore city, and in January, 1909, he was arrested in Denver on these indictments and brought back to Baltimore. was filed in circuit court No. 2, of Baltimore city for the purpose of having the sale of the property to Papio annulled upon the payment of the judgment, interest, and costs, and to obtain other relief incidental to that purpose. The gist of the complainant's contention is set out in his bill in the following language: "That by reason of fraud, misrepresentations, and collusion practiced upon the said sheriff, he was induced to seize and sell property of this complainant valued at more than $8,000 in satisfaction of a judgment of only $220, and to so conduct the sale thereof that there was no competitive bidding at said sale, whereby said judgment creditor was enabled to purchase all of the aforementioned property at the face value of his judgment and costs, notwithstanding the excessive levy made in violation of statutes of Maryland in such cases made and provided, thereby unjustly converting to his own use the plaintiff's entire equity in said property." After testimony had been taken and the case argued, a decree was passed, dismissing the bill, and from that decree this appeal was taken. [1] There is nothing in the testimony to support the charge that "by reason of fraud, misrepresentations, and collusion practiced upon the sheriff" he was "induced" to sell property valued at "more than $8,000 to satisfy a judgment of $220 and to so conduct the sale" that there was no competitive bidding, other than a supposed inadequacy in the price obtained for the property at the sheriff's sale. The attachment proceedings are regular on their face, and it is not denied that Roberto owed the debt upon which they were based, nor that when the attachment issued he was absent from the state under circumstances which may well have justified a belief that he had absconded. The sale appears to have been advertised in the usual manner, and, as far as the record discloses, to have been fairly conducted. There was some dispute as to whether the notice of sale was posted on the property, Mr. Heine, the deputy sher When he left Baltimore he owned two houses on President street and one on Albemarle street in that city, all of which were subject to ground rents, and several weeks before he went away he placed a mortgage for $2,000 on the President street houses. Shortly after he left Baltimore Mariagrazio iff, who conducted the sale, testifying that Liguillace procured an attachment on original process as against an absconding debtor on a claim of $220 to be issued against him out of the superior court of Baltimore city. he sent the notices to be posted on the property, and one other witness testifying that he saw the notice on at least one of the houses, while five witnesses living in the (116 A.) neighborhood testified that they passed the | did Roberto intimate to Papio that he intendproperty at the time the property was adver- ed to question Papio's right to the property, tised for sale, but saw no such notice, and although he knew Papio claimed it as his Mrs. Roberto testified that none was posted own and dealt with it as such. on the property, but it was definitely shown that it was advertised in the Daily Record, and that a notice of the sale was posted on the courthouse door in Baltimore city. [2] Nor, when the testimony is analyzed, does it support the averments of the bill of complaint and appellant's brief as to the inadequacy of the price obtained. William Merriken, a witness of 30 years' experience in Baltimore city as a real estate broker, and the only witness as to values, other than the appellant himself, who was familiar with the property in question and had as agent bought other property in the immediate neighborhood, valued the appellant's leasehold interest in the three houses in 1909 at $3,132, against which there was an outstanding mortgage of $2,000, and this valuation, while somewhat higher, was in substantial accord with the valuation placed on the property by the city for the purpose of taxation at that time. It is true the appellant himself testified the property cost him about $9,000, including improvements and repairs, but that testimony was not conclusive, nor did it establish the fair market value of the property, but at most was only a circumstance to be considered in arriving at its fair market value. Under such circumstances, in our opinion, the defense of laches may properly be invoked, and the maxim "Vigilantibus non dormientibus jura subveniunt" applied. What was said by this court through Judge Briscoe in Ripple v. Kuehne, 100 Md. 672, 60 Atl. 464, is equally applicable to this case. There it was said: "The bill was not filed until more than eight years after the alleged fraud was committed and almost a year after the death of the party charged with the fraud, and the attorney who transacted the business. This court has repeatedly held there must be 'conscience, good faith and reasonable diligence to call into action the powers of a court of equity.' In Hammond v. Hopkins, 143 U. S. 224, it is said, in but the imputation rests upon conjecture, where all cases where actual fraud is not made out, the seal of death has closed the lips of those whose character is involved, and lapse of time has impaired the recollection of transactions and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. And those who have slept upon their rights must be remitted to the repose from which they should not have been aroused." [5] Nor are the cases cited by the appellant at all in conflict with the view which we have expressed. The rule laid down in those cases is stated in Demuth v. Old Town Bank, cases is stated in Demuth v. Old Town Bank, 85 Md. 315, 37 Atl. 266, 60 Am. St. Rep. 322, in the following language: [3, 4] Considering that the burden was upon the complainant to establish the allegations of the bill of complaint, we are unable tions of the bill of complaint, we are unable to say that his testimony alone was sufficient to overcome the definite valuation placed on "Strictly speaking, and using the term as it is the property by Mr. Merriken, and, if that valuation is accepted, we could not say that understood in the law, laches is such neglect or omission to assert a right as, taken in conunder the circumstances the price obtained junction with lapse of time more or less great, was so grossly inadequate as to amount in and other circumstances causing prejudice to an itself to evidence of fraud. But even if we adverse party, operates as a bar in a court of could assume that the property was sold for equity. *** Obviously, then, there must a grossly inadequate price, it is too late now be a legal duty to do some act, a failure to do that duty and attendant circumstances which to raise that objection. At the time the prop-cause prejudice to an adverse party before the erty was sold Roberto was in Denver, but he doctrine can be successfully invoked." was informed of the sale by his wife, who was in Baltimore a short time after it was made, and he himself returned within a year after it took place, but neither then nor afterwards, until he filed this bill, did he object to or question the regularity of the sale. It is true he said he employed several attorneys to assert his rights in the property, and that it was due to their procrastination or inattention that nothing was done, but if that were true, the answer to it would be that, as they were his agents, if they failed to act in accordance with his wishes, he should have dismissed them. In the meantime, Edward I. Clarke, Papio's attorney, died, Papio died, and the members of the firm of auctioneers who sold the property died, and during the entire period of more than 12 years, which elapsed between the sale and this suit, neither by word nor act That is the existence of laches is made to depend upon the concurrence of these essential elements, a legal duty to do some act and a failure to do that act for a time great enough under the circumstances to cause prejudice to an adverse party. Just what amounts to prejudice as that word is used in this connection naturally depends upon the facts of the particular case, but, generally speaking, it may be said to be anything which places the person affected in a more unfavorable or disadvantageous position than he would otherwise have occupied. In this case, during the appellant's long acquiescence in the sale of his property, it largely increased in value, and the two persons who were likely to have known most about the sale have died, and it was only after their lips had been forever sealed that he charged the purchaser with fraud. If he had intended making such a charge or attacking the sale, it was his duty to have exercised reasonable diligence in doing so while the person charged with fraud and the witnesses conversant with the facts could have answered it. That duty the appellant failed to perform, and we cannot say that his failure to do so was without prejudice to the appellees (Hammond v. Hopkins, 143 U. S. 224, 225, 12 Sup. Ct. 418, 36 L. Ed. 134; Stieff v. Ullrich, 110 Md. 633, 73 Atl. 874; Preston v. Horwitz, 85 Md. 171, 36 Atl. 710), and since he acquiesced when he should have objected he cannot now be permitted to object when he should acquiesce. As a result of this conclusion it becomes unnecessary to notice in greater detail the other questions raised by the appellant. From what has been said it follows that the decree appealed from will be affirmed. Decree affirmed, with costs to the appel A contract to lease and sell property owned by a husband and wife as tenants by the entireties cannot be specifically enforced if signed by the wife only without authority from the husband. 4. Specific performance 32(1)-Courts will not specifically execute contract lacking mutuality. J. Calvin Carney, of Baltimore (Dickerson & Nice and C. Milton Dickerson, all of Baltimore, on the brief), for appellant. George Arnold Frick, of Baltimore (William I. Norris and F. F. Denhard, both of Baltimore, on the brief), for appellees. BRISCOE, J. On the 18th day of September, 1918, the Bradford Loan & Savings Association of Baltimore City, one of the defendants in this case, agreed in writing to sell to one Joseph M. Green a certain lot of ground, with the improvements thereon, situate on the southwest corner of Twelfth and Fleet streets, Baltimore City, and known as 600 south Twelfth street, for the sum of $1,820, subject to an annual ground rent of $50. The contract of sale is set out in the record, and it recites that the purchase price was to be paid in weekly installments, as stated therein, and it stipulated, upon payment of the balance due, it would execute to the purchaser at his costs and expense a deed for said property, subject to the ground rent mentioned therein. There were other covenants and stipulations, set out, in the contract of sale, which will fully appear from the contract itself, but need not be further stated here. On the 18th day of December, 1918, Joseph M. Green assigned and transferred to two of the defendants, A. Edward Fraebel, and Maria Fraebel, his wife, as tenants by the entireties, all of his right, title, and interest in the alleged lease, and to the property mentioned therein, as follows: "For value received, I hereby transfer, assign and set over unto Edward Fraebel and Maria Fraebel, his wife, as tenants by the entireties, all my right, title, and interest in and to the within agreement and the property menwife on their part hereby accepting this agreetioned therein. The said Edward Fraebel and ment with all its clauses, conditions and cove nants. "As witness the hands and seals this 12th day of December, 1918, of the parties hereto. "Joseph M. Green. [Seal.] "Edward Fraebel. [Seal.] "Mary Fraebel. [Seal.] "Test: Edna V. Schaeffer." On June 16, 1919, Mrs. Mary Fraebel, alone, The courts will not specifically execute a executed a two-year lease of this property to contract lacking in mutuality of obligation. Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump, Judge. Suit by J. Frank Fox against Mary Fraebel and others. From a decree dismissing the bill, plaintiff appeals. Affirmed without prejudice to plaintiff's rights at law. Argued before BOYD, C. J., and BRISCOE, URNER, STOCKBRIDGE, and OFFUTT, JJ. William E. Jarrell, with the option of purchasing the property for the sum of $2,300. The lease in question is as follows: "This agreement witnesseth, that Mary Fraebel doth hereby agree to lease to William E. Jarrell, property Number 600 S. Twelfth street, in Baltimore City, Maryland, at a rental of thirty dollars ($30.00) per month, beginning from March 10th, 1919, for a term of two years, with the privilege of subleasing said property by William E. Jarrell, and also the (116 A.) option of purchasing said premises for the sum, each of them be restrained and enjoined from of twenty-three hundred dollars. "Witness our hands and seals this sixteenth day of June, 1919. Mary Fraebel. [Seal.] "W. E. Jarrell. [Seal.] "Test: Emil R. Denhard." William E. Jarrell, one of the parties to the lease, died on the 19th of October, 1919, and on the 24th of February, 1921, letters of administration on his estate were granted to his widow, Stella E. Jarrell, by the orphans' court of Baltimore City. Subsequently, she procured an order of the orphan's court directing the sale of the alleged lease and option, and sold the same to the plaintiff, J. Frank Fox, for the sum of $200. This sale, it appears, was reported to and ratified by the orphans' court, and the administratrix thereafter made the following transfer and assignment on the lease and option to J. Frank Fox: "For value received I hereby assign and transfer the above agreement and option to J. Frank Fox. "Witness my hand and seal. selling, or in any way disposing of, the property described in the lease. The defendants answered the bill and by their answer denied the right of the plaintiff to relief under his bill, and that the averment of fact was entirely insufficient to afford relief by specific performance, as sought by the bill. The case was heard upon bill, answers, and proof, and from a decree, dismissing the bill. without prejudice to any rights at law that the plaintiff may have, this appeal has been taken. [1] The law of specific performance is well settled in this state and elsewhere, and it is only necessary in this opinion to refer to a few of the adjudicated cases. 25 Ruling Case Law, 203; Stoddert v. Tuck, 5 Md. 18; Kraft v. Egan, 78 Md. 36, 26 Atl. 1082; Henneke v. Cooke, 135 Md. 417, 109 Atl. 113. In Horner v. Woodland, 88 Md. 512, 41 Atl. 1080, this court said: "The contract sought to be enforced must be certain and definite in all of its provisions, "Mrs. Stella Jarrell, [Seal,] and fair and mutual in its terms, and must be "Administratrix of William E. so clearly proven as to satisfy the court that Jarrell, Deceased." On March 5, 1921, the appellant notified the three appellees, by letter, that he had purchased the lease and option and had elected to exercise the option to purchase the property, contained therein. The letter is set out in the record and is as follows: "March 5th, 1921. "Mrs. Mary Fraebel and Mr. A. Edward Fraebel, her Husband, Bradford Building and Loan Association: I beg to notify you that I have purchased from Mrs. Stella C. Jarrell, administratrix of the estate of William E. Jarrell, the lease of and option to purchase the property No. 600 South Twelfth street, Baltimore, Md. I beg to notify you that I do hereby exercise the option to purchase said property contained in the agreement entered into with the late William E. Jarrell on June 16th, 1919. ment. "Kindly let me know not later than next Wednesday, March 9th, 1921, what time will be convenient to you to consummate the matter. "[Signed] J. Frank Fox." The defendants declined to convey the property to the appellant, and upon this refusal, the pending bill was filed to specifically enforce the lease and the option to purchase the property, in question, and for a decree to compel the defendants to execute a proper deed for the property to the plaintiff, upon the payment of the purchase money. The bill also asked that, pending the determination of the suit, the defendants and it constitutes the actual agreement between the parties. If any of these ingredients are wanting the specific performance will not be decreed." In the present case, it will be seen that neither the alleged written contract, nor the contract and testimony taken together, present a proper case for relief by specific performance. [2] The contract or agreement to lease between Mrs. Mary Fraebel and Wm. E. Jarrell, dated the 16th of June, 1919, and containing the option to purchase the property, for the sum of $2,300, was only signed by Mrs. Fraebel and not by her husband, Mr. Fraebel. The property had been assigned and transferred to them by Green, as tenants by the entireties, and the wife could not, alone, have effectually contracted to lease and to sell the property to which they held title as tenants by the entireties. Hartman v. Thompson, 104 Md. 408, 65 Atl. 117, 118 Am. St. Rep. 422, 10 Ann. Cas. 92; Abrams v. Eckenrode, 136 Md. 248, 110 Atl. 468; Milburn et al. v. Michel, 137 Md. 415, 112 Atl. 581. [3] An examination of the evidence shows that Mr. Fraebel, the husband, never agreed to sign the lease or contract of sale, and never authorized his wife, as his agent, to enter into an agreement "to agree to lease" or to agree to sell the property. His testimony in this respect and to this effect is supported by that of his wife, Mary Fraebel. The paper, in fact, was not signed by the husband, and was not properly executed, to be specifically enforced. Jordan v. Reynolds, 105 Md. 296, 66 Atl. 37, 9 L. R. A. (N. S.) 1026, 121 Am. St. Rep. 578, 12 Ann. Cas. 51; Vinton v. Beamer, 55 Mich. 561, 22 N. W. 40; Dixon v. Dixon, 92 Md. 442, 48 Atl. 152, |