alteration and change of the contract with-, not until the 19th day of March, 1907, that out the written order of the owner would notice was given the appellee of the alleged bind the contractors in this case, it was not breach of the contract and a demand to have made in a manner to bind the appellee, be- the plastering replaced. cause the bond guaranteed the installation We think, upon the whole record, the of lime mortar plaster called for by the con- case was devoid of legally sufficient evidence tract and specifications, and not that of a to permit the plaintiff to recover under the different character of plaster, a patent plas- pleadings and evidence in the case, and the ter, such as was adopted and put in the case was properly withdrawn from the jury church.

by the defendants' first prayer. As this conIn Wehr v. St. Matthews Cong., 47 Md.clusión disposes of the case, it will not be 177, it is said it is perfectly well settled that necessary for us to pass upon the other a surety has the right to stand upon the very granted prayers or the other questions preterms of his contract, and, if such contract sented on the record. be altered or varied in any material point For the reasons stated, the judgment will without his consent, so as to constitute a be affirmed, with costs. new agreement varying substantially from the original, he is no longer bound.

In Plunkett v. Sewing Machine Co., 84 Md. 532, 36 Atl. 115, it was said the liability of WANNENWETSCH et al. v. MAYOR AND

CITY COUNCIL OF BALTIMORE a surety or a guarantor is created entirely

et al. by his contract. It is therefore strictly confined and limited to his contract. No mate- (Court of Appeals of Maryland. April 5, rial change can be made in them without his

1911.) consent.

1. TAXATION (8 453*)-ASSESSMENT-REVIEW [3] All courts have maintained that his -JURISDICTION OF COURTS. responsibility cannot be extended by con- and amends Baltimore Charter (Laws 1898, c.

Under Laws 1908, c. 167, which re-enacts struction beyond the limits which he has 123) $ 170, and provides that, on an appeal from himself fixed. Leppert v. Flaggs, 101 Md. 74, an assessment to the city court, the court shall 60 Atl. 450; George v. Andrews, 60 Md. 26, hear the cause de novo, and the action of the 45 Am. Rep. 706; Lake v. Thomas, 84 Md. reason if due notice of the proceedings shall

appeal tax court shall not be held void for any 608, 36 Atl. 437; Schaeffer v. Bond, 72 Md. have been given, the city court is required to 301, 20 Atl. 176; Mayhew v. Boyd, 5 Md. 102,

declare assessments and classifications void 59 Am. Dec. 101; McConnell v. Poor. 113 when made without due notice, so that one

whose property has been assessed without due lowa, 133, 84 N. W. 968, 52 L. R. A. 312; notice is not entitled to come into equity to Gibbs v. Girardville, 195 Pa. 396, 46 Atl. 91. have the assessment declared void, having a

[4] Besides this, it will be seen that by clear remedy at law. paragraph 4 of the contract the decision of Cent. Dig. $ 809; Dec. Dig. $ '453.*]

[Ed. Note. For other cases, see Taxation, the architect, on all matters referred to him, 2. TAXATION ($ 363*) — ASSESSMENTS MODE should be final and conclusive.

OF ASSESSMENT-NOTICE-DUE NOTICE. In this case the architect gave his approv

Due notice required by Baltimore Charter al of the plastering. He testified, "I did (Laws 1898, c. 123) $ 170, as amended and re

enacted in Laws 1908, c. 167, to sustain the make a report, stating that the plastering validity of an assessment, need not be personal was well executed and a very nice looking notice, the leaving of a notice at the house piece of work."

which is the subject of taxation being sufficient. Mr. Bagby, the chairman of the board of Cent. Dig. 8 603-606 ; Dec. Dig. g 363.* ]

[Ed. Note.-For other cases, see Taxation, trustees of the plaintiff church, testified that: "The architect reported, except as to Appeal from Circuit Court of Baltimore some small matters, that the entire work City; Alfred S. Niles, Judge. had been done to his satisfaction. He re- Suit by Mary Wannenwetsch and others ported that the plastering was a first-class against the Mayor and City Council of Baljob and had been done in accordance with timore and others. From a decree dismissthe agreement." There was no allegation or ing the bill, complainants appeal. Affirmed. proof of fraud, collusion, or mistake on the Argued before BOYD, C. J., and BRISpart of the architect as to his action in this COE, PEARCE, PATTISON, and URNER, JJ regard, and his report was accepted as con

S. S. Field, for appellants. W. H. De C. clusive, at the time of the completion of the Wright, for appellees. building and of the final payment by the appellant, that the work had been performed PEARCE, J. This appeal is from an order according to the contract. The building was or decree of the circuit court of Baltimore accepted by the trustees and used for church city dismissing a bill for an injunction purposes until the 1st day of March, 1907, against the mayor anu city council of Baltiwhen the ceiling of the main auditorium of more city and Frank Brown, collector of the church was condemned by reason of the state and city taxes for Baltimore city, redefective condition of the plastering. It was straining them from collecting taxes at the

full city rate upon the properties of the obtained knowledge of the increased assessseveral plaintiffs, and requiring them to ac- ment and of the classification bringing the cept from the plaintiffs city taxes at the rate property within the full city rate of taxation, of 60 cents in each hundred dollars for the had the right then to ask from the appeal years 1909 and 1910.

tax court an abatement of the assessment [1] The bill alleges that all of the proper- and the restoration of the property to the ties of the several plaintiffs mentioned in 60-cent rate for city taxes, and that, upon the proceedings are located in a block in that its refusal to make the abatement or to order part of Baltimore city which was annexed the restoration of the 60-cent rate, he could thereto by Acts 1888, C. 98, and that said appeal within 30 days from such refusal to block contains more than 200,000 superficial the Baltimore city court, and, thus having square feet, and up to the year 1909 was not a clear legal remedy, that he could not resort surrounded by streets improved as required to equity for relief. But we held that secby Acts 1902, c. 130, and that up to and un- tion 170, as it then stood, had no relation to til the year 1909 all said properties were the jurisdiction of the appeal tax court, classified for taxation for city purposes un- whose jurisdiction was absolutely dependent der said last-mentioned act at 60 cents on the as to the assessment upon the giving of the $100, and all those allegations are estab- notice prescribed in sections 150 and 164A, lished by the undisputed evidence. The bill and as to the classification, upon the giving then further charges that said properties of reasonable notice, and that section 170 were classified for the years 1909 and 1910 had no relation to void assessments or classiat the full city rate of $1.95 in the $100, and fications. We said section 170 "deals with that such classification by the appeal tax questions arising after a valid, though ercourt of Baltimore city was illegal and void, roneous, assessment has been made. The both because said block was not subject to remedy against an invalid assessment, one such classification, and because the same was made without jurisdiction to make it, is to made without any notice to any of the plain- strike it down, though the result may be to tiffs, and that none of the plaintiffs knew lose the taxes for that year. The remedy such classification had been made until aft- against an assessment valid as an assC88er the time allowed by section 170 of the ment, but illegal because of the manner in city charter (Acts 1908, c. 167) for appeal to which it was made, or erroneous because of the Baltimore city court. The appellants under or over valuation, is by application concede they would have had an adequate recognizing the jurisdiction to assess, but remedy at law for the alleged wrongful class- attacking the legality or regularity of the ification by the appeal thus provided, if due form of the proceedings under the conceded notice of the purpose to make such classifica- jurisdiction.” As the demurrer in that case tion had been given them, but allege that conceded the jurisdictional defect of want of the want of due notice rendered the classic notice, and the charter contained no provification void, and entitles them to relief in sion authorizing the appeal tax court or the equity. To sustain this contention, they rely Baltimore city court to declare an assessupon the case of Baltimore City v. Poole & ment to be null and void, but only "to reduce Son Co., 97 Md. 67, 54 Atl. 681, decided in or abate" it, we held that relief against a 1903. In that case both the assessment and void assessment could only be obtained in the classification of the plaintiffs' property equity, and we consequently affirmed the dehad been changed, and the bill alleged that cree of the circuit court. But section 170 no notice of either purpose had been given of the charter has been repealed and re-ento the plaintiff. Sections 150 (Laws 1898, c. acted by chapter 167 of the Acts of 1908 123) and 164A (Laws 1900, c. 347) of the city with some very material changes, in consecharter expressly required notice to the quence of which the city now renews the owner as respects assessments, but there was contention made hy it in the Poole Case, supthen no statutory declaration of the power ra, and in considering this contention it will of the appeal tax court to classify property, be necessary carefully to compare the orignor any statutory regulations of the pro- inal with the amended section. cedure for the purpose of classification so as One obvious purpose of that act, disclosed to determine when property in the annexed by a cursory reading, was to give statutory part of the city was brought within those recognition to the power of classification conditions of the annexation acts which which in Poole's Case we said the appeal would permit its taxation at the full city tax court must be held to possess; also, to rate. There was a demurrer to the bill place classification and assessment upon the which was sustained by the circuit court, and same footing as respects procedure, and its decree was affirmed here on appeal, this hence whenever the word "assessment" is court holding that the prescribed notice as mentioned in the original section the word to assessment and reasonable notice as to "classification” is coupled with it in the classification was necessary to give jurisdic amended section, Another purpose of the tion to the appeal tax court.

act of 1908 was to enlarge the power of the It was contended by the city in that case Baltimore city court on appeals from the that, under section 170 of the city charter, appeal tax court, and to define more clearly

to

court

court

the

court

or

court

the assess

anew,

and, in that we may more readily compare , shall be declared void, when due notice has the original and amended section in these re- not been given. Unless such construction is spects, we have placed that portion of each given to that language, the Baltimore city section which relates to the trial of these court could not proceed, as directed in the appeals in parallel columns, as follows: next sentence, “to assess or classify anew" Original Section.

Amended Section.

the property in question. A new assessment The person or the city The person or the city or classification can only be made when the appealing the said appealing to the said old one has been superseded as void. The Baltimore city

Baltimore city shall have a trial before shall have a trial before only object of a bill in equity in such a case the court without the in

without the as that before us is to have the assessment tervention of a jury, and intervention of a jury, the court sitting without and the court sitting

or classification declared to be null and void, a jury shall ascertain or without a jury, shall and, if the Baltimore city court is authorized decide on the proper as- hear the case de novo, sessment, and shall not and shall ascertain and

so to declare upon the same state of facts reject or set aside the decide on the proper as- as has heretofore been required in a court record of the proceedings sessment classificaof the judges of the said tion of the property for of equity, there can be no occasion to resort appeal tax court for any the year involved in the to a court of equity. The same language defect or omission in ei- appeal; and neither the ther form or substance, action, nor the record of which in giving complete jurisdiction to a but shall amend or sup- the proceedings of the court of law created a clear legal remedy ply all such defects or judges of the appeal toe took away the right to resort to equity. Our omissions, and assess,

in

premises increase or reduce shall be held to be or conclusion, therefore, is that upon the ground amount of the

declared void for ment, and alter, modify reason whatsoever; pro- just considered the decree of the circuit court and correct the record of vided due notice of the should be affirmed. proceedings in all or any proceedings shall have of its parts as the said been given to the parties

Chapter 167 of 1908 was before us in the Baltimore city court entitled by said judges case of Mayor and City Council of Baltimore shall deem just and of the appeal tax court; proper. and the said Baltimore

v. Hurlock, 113 Md. 674, 78 Atl. 558, decided city court shall assess November 16, 1910, and published in the

or classify anew, as the case may be, the Daily Record of November 23, 1910. The property forming the only contention there made was that the subject of the appeal ; provided however that assessment was unequal as compared with in the absence of any al- other property of the same kind in the same firmative evidence to the contrary, the assessment neighborhood, and that the property was or classification appealed overvalued; the appeal in that case being from shall be affirmed.

from rulings of the Baltimore city court. Chapter 167 of 1908 is a remedial statute In the course of the opinion in that case, redesigned to effect a complete system for the ferring to the same language of section 170 correction of all errors in assessing and class. as amended which is transcribed herein, it ifying property in Baltimore city, and to ac- was said: “No assessment can be declared complish this with the least possible delay void, but the city court must assess the propand expense both to the city and to the tax- erty in question anew." This obviously payer, and it should be liberally construed meant that no merely irregular or erroneous to effect the purpose of its enactment. This assessment such as was there complained of purpose can plainly be best attained by con- could be declared void; the qualification conferring upon a single tribunal jurisdiction tained in the amended section, "provided due orer the whole field covered by the text of notice of the proceedings shall have been section 170. Under the original section, only given to the parties entitled by said judges a court of equity could declare an assessment of the appeal tax court," being inadvertently or classification to be null and void (no pow- omitted, as not involved in that case. This er being conferred upon the Baltimore city will appear from a later passage in the same court to that end), and, when so declared by opinion where it was said that the object of a court of equity, it was necessary to go back the section as amended was to "avoid a total again to the appeal tax court, and there failure of any assessment such as occurred have another assessment or classification in Consolidated Gas Co. v. Baltimore, 101 made. Under the amended section 170, the Md. 559 (61 Atl. 532, 1 L. R. A. (N. S.) 263, Baltimore city court on appeal is required 109 Am. St. Rep. 584), and would occur unto try the case de novo, and by the clearest der the original section 170 whenever it beand strongest implication is authorized and came necessary to set aside an assessment required to declare assessments and classic appealed from." fications to be null and void when made with- [2] It does not appear from the opinion of out previous due notice to the owners or per- the learned judge below what view he took sons entitled thereto. No other rational con- of the ground upon which we have placed struction can be placed upon the language our affirmance of his decree, as he decided of the amended section, which forbids that the case upon other grounds, holding that “neither the action or the record of the pro- "due notice" does not necessarily mean that ceedings of the judges of the appeal tax court notice should be personally served in the shall be held to be, or declared, void for any process of taxation, and that the notices reason whaterer; provided due notice of the which in this case were left at each house, proceedings shall have been given to the par- which was the subject of taxation constituttiffs' remedy was by appeal to the city court. | Ann Murray, Sarah A. Crawford and Jane With this view we fully agree, and should J. Murray, as heirs of the above Peter and be quite content to affirm upon that ground Elizabeth Murray, property situated on the alone, but, with a view to settling the prac-southwest corner of Gay and Canal streets tice, we have deemed it best to decide now (now Central avenue) the object of this is the question thus renewed under the amend that in case that if by death should take ed section 170 by the city's solicitors.

one of the parties, the other three sisters Decree aflirmed, with costs to the appel- are the owners, and if two are taken by lees.

death, then the two remaining sisters are the owners, and if by death one of the two sisters is taken then the last surviving sis

ter is the owner, and in order to carry faithMURRAY et al. v. KERNEY.

fully this agreement, we hereunto set our (Court of Appeals of Maryland. April 26, hands and seals and subscribe our names 1911.)

this second day of December, in the year DEEDS ($ 24*)-NATURE-COVENANT TO STAND eighteen hundred and eighty five.” The bill SEISED TO USES.

further alleges that the three sisters all died An agreement executed with due formality in the lifetime of Jane J. Murray, leaving by four sisters, joint owners of land, reciting that, in case of death of one, the other three ber surviving them, the owner, as it alleges, are owners, and if two are taken by death, of said property under and by virtue of said then the two remaining sisters are the owners, agreement, and that she died on the 26th of and if one of the two are taken by death, then the last surviving sister is the owner,

',; January, 1908. The bill also alleges that if inoperative as a common-law deed to vest said property for a long time prior to the title in the surviving sister, was effective as acquisition of it by the plaintiff was occua covenant to stand seised to uses under the pied by him and was in his possession at the statute of uses.

(Ed. Note.- For other cases, see Deeds, Cent. time of the filing of the bill; that at the Dig. 88 45–48; Dec. Dig. $ 24.*]

time of the death of the said Jane J. Mur

ray she was seised of the property adjoining Appeal from Circuit Court of Baltimore the property so acquired by him, which was City; Alfred S. Niles, Judge.

also embraced in the property mentioned and Bill by John A. Kerney against James E. described in the agreement above mentioned, Murray and others. Judgment for plaintiff, signed by the said Jane J. Murray and her and defendants appeal. Affirmed.

sisters aforesaid, and which her heirs, after Argued before BOYD, C. J., and PEARCE, her death, agreed to sell to the North Gay THOMAS, PATTISON, and URNER, JJ.

Street Permanent Building & Loan AssociaCharles S. Hayden, for appellants. C. Al- tion of Baltimore City, but, upon examinaex. Fairbank, Jr., for appellee.

tion, the purchaser was not satisfied with the

title of Jane J. Murray thereto, its objec. PATTISON, J. In this case the appellee, tion being based upon the sufficiency of the plaintiff below, filed his bill alleging that he agreement above given to pass title to her was the owner, in fee simple, of a lot of land in said lands, and proceedings were insti. in Baltimore city, situated at the corner tuted in the circuit court for Baltimore city formed by the intersection of the west side "for the sale of said property and the ratifiof Central avenue and the southeast side of cation of the contract of sale to the said corGay street that he had acquired from one poration, which proceedings have long since Jane J. Murray by deed dated September been completed and the title of said ad13, 1905.

joining property conveyed to the said corpoThe bill alleges that Jane J. Murray ac- ration." quired title to this property by written agree- As the legal sufficiency of the title of Jane ment executed on the 2d day of December, J. Murray in and to the lands sold as 1885, by the said Jane J. Murray and her aforesaid had been questioned, the plaintiff three sisters, who were at the time owners thought it best, as he alleges, to have executof said lands as tenants in common. The ed to him by the heirs of Jane J. Murray a agreement was executed and acknowledged confirmatory deed for the property so conby them with all the formalities required in veyed unto him by her as aforesaid.

To the execution and acknowledgment of deeds, this end he called upon the heirs to execute and was duly recorded, and is as follows: the confirmatory deed, and all of them exe“We, the undersigned, daughters of the late cuted the same except the defendants, who Peter and Elizabeth Murray, named and sub- refused to do so. It was then that he described to this instrument of writing, do en- termined to file the bill asking the court, ter into an agreement that for the benefit as he did, to construe said agreement, and of each and all of them named and subscrib- by its decree "remove any cloud which might ed to this agreement and are now living in exist or be supposed to exist” upon his title and owners jointly the property being their to said lands. The defendants Mary J. Murjoint interest left them, Lucy A. Murray, I ray and William A. Murray answered, stating that as to the construction of the paper of words is necessary to constitute a 'covewriting or agreement mentioned in the bill, nant to stand seised.' The consideration is and as to the relief prayed therein, they con- the chief requisite to characterize it and sented to and desired that the court should to support it as such a conveyance. This pass such decree as to it might seem just consideration is blood and marriage. If and proper in the premises. The other de the consideration appears in a deed, though fendants, James E. Murray and Thomas F. there be no express words of consideration, Murray, also answered, neither admitting nor yet it is su cient to raise a use by way of denying the things alleged in the bill, but conveyance." Barry v. Shelby, 5 Tenn. 229, requiring proof thereof. To these answers 231. Lord Coke, in treating the Statute of the general replication was filed, and the tes. Uses, says: “The intention of the parties is timony of the plaintiff alone was thereafter the principal foundation of the creation of taken, which substantially sustains the alle uses.' And in Slay v. Mehan, 1 Lewt. 782, gations of the bill.

the court says: “There is no covenant that The question presented by this appeal is, admits of such a variety of words as that Did Jane J. Murray, the survivor of the sis- of a covenant to stand seised.” Hayes v. ters, who were, as it is conceded, at the Kershow, 1 Sandf. Ch. (N. Y.) 263. "The covetime of the execution of the paper writing nant must, of course, be by deed in order to above set forth the owners of said land in constitute it a covenant; and the usual term volved in these proceedings as tenants in employed in creating it is 'covenant,' though common, acquire their interest therein under any other words may be adopted which are and by virtue of such written agreement? tantamount thereto.” 2 Washburn on Real It is not difficult to ascertain the meaning Property, $ 1379. The deed or instrument of of said paper writing. It was evidently the writing that was before the court in the purpose and intention of the sisters that case of Fisher v. Strickler, 10 Pa. 348, 51 they should continue to own said property Am. Dec. 488, was as follows: "Now, know so long as all of them should live, and upon ye, that we the said Jacob Strickler and the death of any one of them the three sur

Christian Strickler, have this day agreed viving sisters should be the owners of said with each other, that in case if one of them property, and upon the death of the second shall happen to die unmarried, or intermarsister the two surviving sisters should be ried and without lawful issue or issues that the owners thereof, and, upon the death of should arrive to the age of twenty one years, the third sister, the surviving sister was to that then and in that case the survivor of become the owner of the entire interest for them shall be the sole heir of the deceased merly held by the four sisters, or the owner

one both to the real and personal estate of of the property. But is this instrument of the deceased, without any further deed or writing legally sufficient to effect the pur-conveyance; to hold the real estate as well pose and meaning aforesaid? "Where the

as the personal estate of the deceased unto intent of the grantor to pass the land is ap- forever.” The court in adopting the opin

the survivor and to his heirs and assigns parent, if for any reason the deed or instrument by which the transfer of title was in ion of the lower court said: “The instrument tended to be effected cannot operate in the of writing set forth in this case is what is way contemplated by the parties, the court,

technically called a 'covenant to stand seised if possible, will give it effect in some other to uses.' The words are sufficient to create

the covenant, the intention being apparent way, and judges have been very astute in such cases in their endeavors to make the should stand seised to the use of the other

on the face of the deed that each party conveyance operative one way or the other surviving him under the circumstances statto carry into effect the intention of the gran. ed. And the consideration of natural love, tor or donor.” Bank of U. S. v. Housman, 6 though not expressed, is manifest from the Paige (N. Y.) 534.

relation of the parties. Milbourn v. Salkeld, If for any of the reasons assigned by Willes, 673; Bedell's Case, 7 Rep. 40; Crossthe appellant the instrument of writing men- ing v. Scudamore, 1 Ventr. 137; 3 Cruise's tioned in this case should be inoperative as Dig. Part IV. 186-190." a common-law deed, we think that it is effec- "In this case, as it is conceded, the four sistive as a covenant to stand seised to uses ters were seised in fee, as tenants in comunder the statute of uses. Blackstone de

mon, of the lands in question, and, being so fines a covenant to stand seised to uses as seised, executed the deed or agreement above "a species of conveyance by which a man set forth. Each was seised of a one-fourth seised of lands, covenants in consideration undivided interest in said land, and by this of blood and marriage that he will stand deed or instrument of writing each covenantseised of the same to the use of his child, ed to stand seised of her interest therein to wife or kinsman, for life, in tail, or in fee. her use during her life, and upon her death But this conveyance can only operate when to the use of such of her sisters as survived made upon such weighty and interesting con- her, successively to and including the last siderations as those of blood and marriage." survivor, who became seised thereby in fee