has not done. Upon the facts found, we hold that defendant Miller lawfully took possession of the property, and that it does not appear that he unlawfully detained it; and it is found that defendant Fitts had no possession or control of the property at the time it was replevied.

R. L. § 1180, authorizes the taking and sale of mortgaged personal property upon execution as the property of the mortgagor. Id. § 1181, provides that the officer taking such property on execution may demand of the mortgagee an account, in writing and under oath, of the amount due upon the debt secured by the mortgage; that the officer, without tender or payment of the amount due, may retain such property in his custody until such account is rendered; that the mortgagee, if he resides in this state, shall render such account within 15 days after such demand: and that if he does not render such account, or if he renders a false account, such property may be sold discharged from such mortgage. Id. § 1182, provides that, if such debt is due at the time of rendering such account, the creditor taking such property in execution may, within 10 days after the account is rendered, pay or tender the amount so rendered to the mortgagee, and sell the property discharged from such mortgage. Id. § 1185, provides that, when the mortgage debt is not due at the time fixed for the sale, the creditor taking such property on execution may offer to pay the mortgage debt, and if the mortgagee refuse to receive the same the property may be sold subject to such mortgage. No. 69 of the Acts of 1888 provides that when such account is rendered the property may be sold subject to the mortgage, whether the mortgage debt is due or not. So far as appears from the report of the referee, all the steps taken by Miller with a view to sell the property upon execution were lawful, and such as he might and would naturally take, were he proceeding to sell it under the enactments above cited. At the time the property was replevied, it was not too late to demand an account in writing, and pay the mortgage debt, or sell the property subject to the mortgage. There is nothing

in the case to show that defendant Miller was proceeding to sell the property without regarding the plaintiff's mortgage. So far as he has gone, he was proceeding as the statute authorizes. At the time the plaintiff replevied the property, it could not assume that Miller would not demand an account in writing of the sum due upon the mortgage debt, and sell the property subject to its mortgage, nor that the creditor taking the property on execution would not pay the mortgage debt, and sell the property discharged therefrom. For the purpose of selling the property in the manner authorized by the enactments above cited, Miller had a lawful right to take the property from the possession of the mortgagor, and retain it, as against the mortgagee for such time as was reasonably necessary to

sell it in the manner provided for the sale of mortgaged personal property; and it not appearing that he took or detained the property for any other purpose, or that there has been any unnecessary or unreasonable delay in the exercise of the rights given by the enactments above cited, we hold that the defendants did not unlawfully take or unlawfully detain the property replevied. The pro forma judgment is affirmed.

THOMPSON, J., being engaged in county court, did not sit.

CROOK et al. v. BALTIMORE & O. R. CO. et al. (Court of Appeals of Maryland. Dec. 19, 1894.) SALE OF PERSONALTY-CONTRACT OF WARRANTYASSUMPTION BY ANOTHER-LIABILITY

THEREUNDER-ACCEPTANCE.

1. An ice-making machine having been de livered by the vendor in an incomplete condition, plaintiff, who agreed, with such vendor'sconcurrence, and in consideration of having received the obligations of the vendee, a receiver, for the whole price, to complete it according to the terms of the original contract, holds them subject to such rights of the receiver to enforce warranties by the vendor as would exist were they in his hands.

2. The taking of possession by the trustee in foreclosure proceedings, and under order of the court therein, of property in the hands of a receiver, is not an acceptance by him of a portion of the property on which a warranty given to him had failed.

Appeal from circuit court, Anne Arundel county, in equity.

Proceedings by the Baltimore & Ohio Railroad Company and others, in the nature of exceptions to the allowance by an auditor of the claim of Crook, Horner & Co., against the receiver of the Bay Ridge Company, founded on certain certificates of indebtedness issued by such receiver in payment for an icemachine, for which he had contracted with a certain William H. Pitcher. Claimants had assumed the obligations of Pitcher under his contract, and held the certificates by his indorsement. They appeal from an order sustaining the exceptions. Affirmed.

Argued before ROBINSON, C. J., and BRYAN, MCSHERRY, PAGE, BRISCOE, BOYD, and FOWLER, JJ.

Robert H. Smith, for appellants. John K. Cowen, Hugh L. Bond, and Robert Moss, for appellees.

PAGE, J. This appeal is from the order of the court below sustaining the exceptionsof the appellees to the allowance by the anditor of the claim of the appellants. On the 15th of May, 1890, Charles Webb, the receiver of the Bay Ridge Company, through his agent, Hugh L. Bond, Jr., contracted with. a certain William H. Pitcher for the pur chase of an ice machine, to be furnished with. in 30 days, with capacity for making 11⁄2 tonsof ice per day, and for cooling to a tempera

ture of 32 degrees Fahrenheit, in all weather, certain specified spaces in the restaurant building at Bay Ridge. By the agreement, Pitcher guarantied the capacity and character of the machine, and agreed to run the same for 10 days after completion, to demonstrate its efficiency; the receiver to supply the water and steam required. The price of the machine was to be $4,500, to be paid in installments at different periods, with interest thereon from the date of acceptance, to be secured by notes, indorsed by the Baltimore & Ohio Railroad Company, or some individual indorser satisfactory to said Pitcher. It was also agreed that the property in the machine should remain in Pitcher until the delivery of the notes, indorsed as stated, and these were not to be given until the machine was complete and working to the satisfaction of Mr. Bond. Pitcher put up the machine during the summer of 1890. On the 30th day of October, of the same year, the receiver reported to the court that, while the machine was partially operated the season of 1890, it was not completed and working as required until after the close of the season, and "your receiver did not escape all expense on account of ice, as he had hoped. Your receiver has therefore agreed with said Pitcher, subject to the approval of this honorable court, to accept the said machine and apparatus provided the said Pitcher shall obtain the contract and agreement of Messrs. Crook, Horner & Co., a responsible firm of the city of Baltimore, to put the same in good working order at the beginning of the season of 1891, and to guaranty the same shall in all respects comply with the requirements of the said contract between the said receiver and said Pitcher, as well when op erated during the summer months as at other times, and to pay for the same the sum of $2,000 on or before the 10th July, 1891, and $2,000 on or before September 1, 1891; the balance in cash." By an order passed on the 31st of October, the court approved of the proposed contract, and authorized him to is sue his certificates of indebtedness, bearing 6 per cent. interest per annum, to meet the deferred payments. On the 10th day of November, ensuing, the receiver entered into the following contract: "Whereas, one William H. Pitcher did contract and agree with the said receiver, by written agreement, dated the 15th May, 1890, to construct and supply ice-making and refrigerating plant at Bay Ridge, Anne Arundel county, Maryland, of the description mentioned in said contract, a copy of which is hereto annexed, referred to, and made part of this agreement; and whereas, the said machinery and plant were not completed within the time mentioned in said contract, and could not be tested at the time therein provided; and whereas, the said Pitcher and the said Crook, Horner & Co., as his assignee, are desirous of obtaining a settlement from the said receiver, and the circuit court for Anne Arun

del county has authorized said receiver to issue receiver's certificates to the amount of $4,000, to pay for said plant, provided said firm of Crook, Horner & Co. will contract and agree to put the said machinery and plant in good working order at the beginning of the season of 1891, and guaranty that the same shall in all respects come up to the requirements of the said contract between said receiver and Pitcher, as well when operated during the summer months as at other times: Now, *** in consideration of the delivery by the said receiver of four receiver's certificates, each for the sum of $1,000, bearing," etc., "and the payment of $293.15 in cash, in full settlement and payment for said ice nachine and refrigerating plant, under said contract between the receiver and the said Pitcher, the said Crook, Horner & Co. do hereby promise," etc., "that they will put said machine and apparatus in complete working order at the beginning of the season of 1891, by the fifteenth day of May, and will cause the same to comply with and come up to in all respects the requirements of said contract hereto attached, as well when operated during the summer months as at any time." The amount provided to be paid under this agreement-that is, $4,294.15-was in full settlement for the machine and refrigerating plant, but it also comprehended payment for balance due for a pump located on the steamboat wharf. In pursuance of this contract, the cash provided for therein was paid, and certificates were issued, payable to Pitcher, and, upon being indorsed by him. were delivered to the appellants. Two of these have been paid, and the amounts due on the other two now constitute the appellees' claim. It also appears that prior to November, 1890, Pitcher had become largely indebted to Crook, Horner & Co., partly on account of money advanced to carry out his contract with the receiver. To secure this, Pitcher turned this account against the receiver over to the appellants. At that time the receiver's certificates had not been is sued, nor, as appears by the contract of the appellees, as well as by the proof, had the machine been tested. Indeed, as far as the appellants were concerned, it was to enable them to secure the possession of these certificates that the contract of the 10th of November was entered into. The receiver, by that contract, was to issue the certificates and pay the cash named; and Crook, Horner & Co., on their part, agreed to put the machine in complete working order at the beginning of the season of 1891, and in all respects comply with the requirements resting on Pitcher under his contract. The work Crook, Horner & Co. were to do was that which was the same that Pitcher's contract required him to do, and the money stipulated to be paid to them under Pitcher's contract could be due only upon the completion of the machines, and after they had been tested and accepted according to the original contract. In other

words, the consideration passing to Crook, Horner & Co. was the delivery of the receiver's certificates which Pitcher had agreed to turn over to them; and the duties they had imposed upon them were only to complete Pitcher's work on the machines. For great er certainty as to the nature of the transaction, the contract explicitly stated that the four receiver's certificates, each for $1,000, and the payment of the $292.15, in cash, "were in full settlement and payment for said machine and refrigerating plant under the said contract between the receiver and said Pitcher."

Mr.

The attitude of the appellants under this contract, therefore, was that of a substitute for Pitcher. Having received the promise of the compensation, they assumed his obligations. It does not seem to be seriously contended that the machine was ever brought up to the requirements of the contract. Crook, himself, stated that the machine has never been made to accomplish successfully the test required by the contract, and this is supported by the weight of the testimony. In 1891 work was delayed, by the breaking down of the boiler, until about the middle of June, and afterwards, by the putting in of a larger smokestack, until the middle of August; so that actual tests were begun about the last of August or the first of September, and were continued (according to Mr. Crook) until the 25th of September, when they were discontinued by agreement, because of the lateness of the season, to be renewed in the spring of 1892. That these tests were unsatisfactory is clearly shown, and Mr. Crook seems to admit this when he says that in 1892, he came "to see Mr. Bond about starting up the machine, because they refused to pay these other two receiver's bonds, and we were anxious not only to get the bonds paid, but make the machine work and come up to our guaranty." In 1892 the appellees were informed by Mr. Bond that "he did not have anything to do with Bay Ridge any more; that another company had it; * * * and they would not have any use for the ice machine that summer;" and so no further effort appears to have been made to perfect the machine. On the 27th day of January, 1893, the machine, together with all the real and personal property of the Bay Ridge Company, was sold by Mr. Stockett, trustee, under a decree passed, in certain foreclosure proceedings, by the circuit court for Anne Arundel county, sitting in equity.

In view of what has been said, we think this is a case where, a machine having been delivered by the contractor in an incompleted condition, a third party, with the concurrence of the original contractor, agrees, in consideration of having received the obligations of the contractee for the whole purchase money, to complete it according to the terms. of the original contract. And, under these circumstances, the appellants, having so agreed, and having taken such obligations,

An

with stipulations so to complete the work, with a full knowledge of all the facts of the case, hold the obligations subject to such rights in favor of the receiver as would have existed had they remained in the hands of Pitcher, the original contractor. Now, the original contract provides that the machines should have "capacity for making one and one-half tons of ice per day of twenty-four hours, and of cooling to a temperature of thirty-two degrees Fahrenheit, in all weathers, the following spaces," etc.; and that Pitcher will run the same for 10 days after completion, to demonstrate the character and efficacy thereof. This was a warranty. acceptance of the machine was no waiver of it; and if, having accepted it, there was a breach, the receiver could either maintain an action for a breach of the warranty or recoup the damages sustained in the vendor's suit. Central Trust Co. v. Arctic Ice-Mach. Manuf'g Co., 77 Md. 238, 26 Atl. 493. In this case there was no acceptance of the machine by the vendee. That it was taken possession of by the trustee appointed by the circuit court in the foreclosure proceedings, and, with other property of the Bay Ridge Company, sold, is true. But this cannot be regarded as an acceptance by the vendee. To entitle the appellants to be paid, they must show performance on their part, or some legal excuse for their failure to perform, according to the terms of their contract; and, having failed to show either, their claim should not be allowed. Order affirmed, and cause remanded.

STEIN v. STEIN et al.

(Court of Appeals of Maryland. Dec. 19, 1894.)

DOWER--SALE WITH OR WITHOUT WIDOW's CONSENT.

1. A person cannot be plaintiff and defendant at the same time in the same cause.

2. The amount which the widow shall receive in lieu of dower from a sale, with her consent, of lands in which she has a dower interest, is fixed by Code, art. 16, § 43, at a sum not exceeding one-seventh and not less than one-tenth of the net proceeds, and cannot be altered by the courts.

3. If a sale of lands in which a widow has a dower interest is made without her consent, it must be made subject to her dower right.

Appeal from circuit court of Baltimore city. Action by Annie Stein and others against Annie Stein, widow, to adjust dower rights. From a decree in favor of plaintiffs, defendant appeals. Reversed.

Argued before ROBINSON, C. J., and BRISCOE, BRYAN, BOYD, FOWLER, and MCSHERRY, JJ.

Ber. Weisenfeld, for appellant. Ber. Weisenfeld, for appellees.

MCSHERRY, J. This is an appeal from a pro forma decree passed in a special case, stated under rule 47 of the general equity rules. The facts are these: Annie Stein has

a dower interest in certain property, which property was directed, by the will of her deceased husband, to be divided into four equal parts, that were then given in trust for the testator's children. This property cannot be divided, and the widow's dower cannot be laid off. To carry out the provisions of the will, a sale and a division of the proceeds are necessary. The questions which the court is asked to determine are: Can the trustees appointed by a decree of a court of equity to make sale of this property for the purposes of a division sell the same free from the widow's dower, without her consent, upon awarding to her, for her life, one-third of the income derived from the invested proceeds of such a sale? Or, if the widow should consent to the sale, will she become entitled, during her life, to one-third of the income derived from the invested proceeds of such sale? A pro forma decree was passed, adjudging that upon a sale of the property, with or without the consent of the widow, she would become entitled to onethird of the income derived from the proceeds of sale, in lieu of dower. From that decree this appeal was taken.

It is perfectly obvious that this pro forma decree is wrong. Before, however, proceeding to state the reasons in support of this conclusion, we must advert to the fact that the questions we are called on to decide have been propounded in a cause in which the same person appears upon both sides of the controversy. Whether the controversy be amicable or hostile, such a procedure is anomalous. A person cannot be both plaintiff and defendant at the same time in the same cause. Diverse and conflicting interests cannot be represented on opposite sides of the docket by the same individual at one and the same time. This court had occasion to express its strong disapproval of such a course in Owens v. Crow, 62 Md. 497. It was there said, and we now repeat: "We feel obliged to express our disapproval of a practice. which has to some extent prevailed, namely, that of putting the same individual on opposite sides of the record. * * * It is a solecism in jurisprudence for a party to sue himself. The same will would control both the prosecution and the defense, and there would be no real contestation. There is no propriety in such a practice, and no necessity for it. * * We cannot tolerate such a practice."

Coming now to the question propounded, it is clear that there are but two conditions under which, in proceedings like this, the inquiry as to what disposition is to be made of the widow's dower can arise. And these are-First, where she consents to a sale of her deceased husband's real estate, clear and discharged of her dower rights; and, secondly, where she does not so consent. In both instances the law is explicit. As to the first, it is prescribed by section 43 of article 16 of the Code that "in all cases where

lands and tenements are to be sold under a decree, and the widow who is entitled to dower in such lands will consent in writing to the sale of the entire estate therein, the court shall order the same to be sold free from any claim of dower," and shall allow the widow a portion of the net proceeds of such sale, not exceeding one-seventh and not less than one-tenth. This section comprehends all cases where the widow consents to a sale free of her right of dower. In every such instance, therefore, the legislature has fixed, within defined limits, the amount to which she shall be entitled in lieu of dower, and no judicial tribunal has any power or authority to vary or change those limits. Hence, when the widow consents to a sale being made free of her dower right, she must take in lieu of that dower precisely what the statute prescribes; and she is entitled to nothing more, nor can she be required to accept anything less. On the other hand, if she does not consent to such a sale, then she may have her dower laid off under section 45 of article 16, or under section 62 of article 46 of the Code. But if this be not done, and a sale be made without her concurrence, it must be made subject to her right of dower. The fact that such a sale would yield smaller proceeds than an unincumbered title would produce can have no influence on the question tion. The widow has the option to unite in the sale or not. If she declines to do so, her status is fixed by the law, and she cannot be coerced. If she agrees to do so, then the amount to which she is entitled in lieu of her dower is settled and fixed by the Code. She cannot, therefore, consent to a sale, and at the same time claim a larger proportion of the proceeds than the statute allows her where she does consent. The case of Maccubbin v. Cromwell, 2 Har. & G. 443, was much relied on by the appellees, but it has no application to the question before us. When that case was decided, in 1828, the statutes in force in Maryland with respect to sales free from the widow's dower were much less comprehensive than they now are. At that time the act of 1816 (chapter 154), relating to decrees for the sale of the real estate of minors, the acts of 1818 (chapter 193) and 1819 (chapter 183), respecting the sale of real estate to save the personalty, and the act of 1820 (chapter 191), reducing to a system the laws to direct descents, were the only statutes relating to this subject. The case of Maccubbin v. Cromwell was not within the purview of either of these acts, for the decree was based upon a bill filed to set aside a conveyance alleged to be fraudulent as against creditors. But now, however, under section 43 of article 16 and section 63 of article 46, every case involving a sale of the widow's dower by her consent is fully covered.

It follows from what we have said-First, that the trustees appointed to make sale of the property referred to in the case stated

have no power to make the sale clear of the widow's dower, without her consent in writing; and, secondly, that if they sell clear of her dower, with her consent, they can award her, in lieu of her dower, no greater sum than the statute prescribes. This being so, the decree, which undertook to give her one-third of the income derived from the proceeds of a sale made with or without her consent, was erroneous, and must be reversed, with costs. Decree reversed, with costs above and below, and cause remanded.

POULTNEY v. DEPKIN.

(Court of Appeals of Maryland. Dec. 18, 1894.) AGREEMENT AS TO PARTY WALL-EFFECT.

Plaintiff agreed in writing that defendant might use the wall of his warehouse as a party wall, in consideration of a certain sum to be paid when defendant found that the wall was safe, and a proper conveyance had been executed by plaintiff. Defendant covenanted to save plaintiff harmless from loss or damage, and, after finding that the wall was safe, tendered the amount agreed, and demanded a conveyance, which was refused. Held, that plaintiff was not entitled to an injunction to restrain defendant from using the wall as agreed, but could recover for any damage.

Appeal from circuit court of Baltimore city. Petition by Walter De C. Poultney for an injunction to restrain Charles F. W. Depkin from using plaintiff's wall as a party wall. From a decree dissolving a temporary injunction, plaintiff appeals. Affirmed.

Argued before ROBINSON, C. J., PAGE, BRYAN, BRISCOE, BOYD, SHERRY, and FOWLER, JJ.

and Mc

Rich. H. Pleasants, Jr., for appellant. Ed. C. Carrington, for appellee.

FOWLER, J. The appellant and appellee are the owners of adjoining lots on the south side of Mercer street, in the city of Baltimore. The appellee wishing to erect a new warehouse on this lot in the place of an old building thereon, and to use the west wall of the appellee's warehouse for a party wall, they agreed in writing on the 29th of March, 1893, that the appellee might use said wall, provided it should appear to be of sufficient breadth for the purpose mentioned. The consideration of this privilege was $400, which was to be paid by the appellee when he ascertained that he could safely use the wall, and a proper conveyance had been executed by the appellant, granting the privilege to do so. There was also a covenant on the part of the appellee to save harmless the appellant, and to indemnify him in case of any loss or damage caused by the use of the wall. It appears that subsequent to the making of this agreement the appellee proceeded to remove the old structure on his lot, and being then, for the first time, able to see the wall in question, he had it examined, and found that it was strong enough for a party wall. Upon v.30A.no.17--45

this point all the witnesses seem to agree. The counsel of the appellee prepared the conveyance called for by the agreement, but, notwithstanding the tender of the amount agreed upon, the appellant refused to execute the paper, whereupon the appellee continued the erection of his new building, and for that purpose was using the appellant's said wall, when the latter filed his bill in the circuit court of Baltimore for an injunction to pre vent him from doing so. The injunction was issued as prayed, but the appellee having answered, and proof having been taken, the injunction was dissolved.

In view of the agreement between the appellant and appellee, we are unable to find any error in the decree appealed from. Whatever may be said as to the proof offered by the appellant as to his understanding of what the agreement was to be, we think it is very clear there that there has been, on the part of the appellee, no violation of the written contract itself. And, in ascertaining the rights of the parties, we must be guided by what we find set forth in the written agreement, and not by what either of them supposed it to be. The learned judge below thus briefly and satisfactorily disposes of the case: "I am at a loss to see in what respect the defendant has violated the contract entered into between him and the plaintiff. The latter agreed that, in consideration of the sum of four hundred dollars, the defendant might have the right to use the wall of the plaintiff's warehouse as a party wall, in the erection of the defendant's proposed new building, provided the wall should be determined to be sufficiently strong for the purpose. This was the only condition imposed, and the agreement further provided that the defendant should pay the plaintiff any damages the latter might suffer from building said wall." Under this agreement, the defendant had a right, upon payment or tender of the sum agreed upon, to use the wall for the purposes to which a party wall can be subjected, i. e., to build upon it, or to insert his joists in it, or even to tear it down and build a new wall, provided the plaintiff's rights were properly protected, or he was paid all damages to which he might be thereby subjected. Putzell v. Bank (Oct. term, 1893; not yet officially reported) 28 Atl. 276. The only restriction upon the exercise of this right was the condition that it should first be determined that the plaintiff's wall was strong enough to support the proposed structure. The testimony shows, according to all the builders who were examined, that the wall was sufficiently strong, in the use proposed to be made of it, and there has not been a word of proof offered that the plaintiff will suffer any damage by the erection of the defendant's building. The defendant having tendered the plaintiff the amount agreed upon, the latter is not entitled to an injunction to restrain the use by the defendant of the wall for all the purposes of a party wall; but, if he can prove that he has