[1] In the view we take of the case, the ruling of the court upon the motion to strike out the witness Garrettson's testimony becomes unimportant, because neither its admission or rejection would reflect upon the conclusion we have reached upon the record before us.

The principal questions before us for re | church purposes until the 1st day of March, view are presented by a single exception, and 1907, when the ceiling of the main auditorithey appear from the rulings of the court, um of the church was condemned by the inin granting the defendants' motion at the spector of buildings of Baltimore as a menclose of the testimony upon both sides to ace to the safety of persons and property, strike out the testimony of the witness Gar- in that the plastering on the ceiling was rettson, which had been admitted in the cracked all over, very loose, and portions of course of the trial subject to exceptions, and it had already fallen. It appears that the in granting the defendants' six prayers. final payment, amounting to $18,776.16, was paid the contractors on the 1st day of February, 1906, as shown by their receipt: "Baltimore, Md., February 1, 1906. Received of the Trustees of the Seventh Baptist Church of Baltimore eighteen thousand, seven hundred and seventy-six dollars and sixteen cents in full settlement of all claims and demands growing out of or connected with the erection of the church at St. Paul street and North avenue and remodeling the chapel in the rear thereof under contract dated the 16th day of December, 1904, or otherwise. This receipt is to cover all charges for extra work. David M. Andrew. Geo. H. Thomas. Teste as to both: S. Scott Beck." While this payment was made without the final written certificate of the architect, he testified that he gave his approval of the plastering and reported that the plastering was a first-class job and was done in accordance with the contract.

Nor do we deem it necessary to discuss or consider all the questions presented by the very able and carefully prepared brief of the counsel for the appellant, because we are of the opinion that the court below was entirely right, upon the whole proof, in granting the defendants' first prayer, which instructed the jury that there was no legally sufficient evidence under the pleadings in this case to show an indebtedness by the defendant to the plaintiff under its bond, and their verdict must be for the defendant.

The substantial facts, as disclosed by the record, appear to be as follows: The contract price for the work, materials, construcThe original specifications, as to plastering, tion, and erection of the church was $52,550, provided for the use of lime mortar plaster; and was to be paid in four payments only but this was changed by the subcontractor, upon the certificate of the architect, the first Litzinger, with the approval of the architect three of $11,750 to be paid as one-fourth, to what is known as ivory or hard wall one-half, and three-fourths of the work was plaster, being a patent plaster with a sand completed, and the remaining fourth and coat finish. There was no specification for final payment of $17,300 was to be made the installation of the patent plaster, and within 30 days after the architect had cer- this change or alteration of the contract was tified that the entire work contemplated by made without the written order of the ownthe contract had been wholly completed and er, and without the consent of the surety. the building turned over by the contractors By the fifth paragraph of the contract, it to the owner, and before each of the pay-made in the work shown or described by the was provided "that no alteration should be ments the architect should also certify in drawings and specifications except upon the writing that all the work upon the perform-written order of the owner, and such addiance of which the payment was due had been done to his entire satisfaction.

It appears from the evidence that the first, second, and third payments under the contract was paid by the appellant to the contractors upon certificates of the architect. On December 20, 1905, the appellant wrote the appellee the following letter: "Gentlemen: Messrs. David M. Andrew and George H. Thomas have this day notified us that they have completed the work under their contract with us dated December 16, 1904, for the faithful performance of which you are surety, see bond No. 173,826. We hereby give you due notice as provided in lines 53, 54 and 55 of said bond that we will make the last payment due Messrs. Andrew and Thomas under said contract in about thirty days from this date. Yours very truly, By Charles T. Bagby, President."

On January 1, 1906, the appellants took

tion or omission in the work required by the owner shall be carried out by the contractors without making void or in any manner affecting the contract."

The substantial ground of the plaintiffs' action here is that the patent plaster had not been mixed according to the manufacturer's directions, by the subcontractor, and that it fell for this reason. While the plaintiffs' testimony tended to show that there was too much sand put in the plaster, it failed to show that the contractors were responsible for the defective condition of the plastering. On the contrary, the evidence shows that the roof of the church was supported by two 70foot trusses of wood, which ran from the front of the church to the rear of the church, and which were supported at each end by steel columns. These trusses had sunk and "had to be jacked up" and tightened before the plastering could be replaced.

WANNENWETSCH v. MAYOR AND CITY COUNCIL OF BALTIMORE

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 of lime mortar plaster called for by the contract and specifications, and not that of a different character of plaster, a patent plaster, such as was adopted and put in the church.

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

PEARCE, J. This appeal is from an order or decree of the circuit court of Baltimore city dismissing a bill for an injunction. against the mayor anu city council of Baltimore city and Frank Brown, collector of state and city taxes for Baltimore city, restraining them from collecting taxes at the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

full city rate upon the properties of the several plaintiffs, and requiring them to accept from the plaintiffs city taxes at the rate of 60 cents in each hundred dollars for the years 1909 and 1910.

obtained knowledge of the increased assessment and of the classification bringing the property within the full city rate of taxation, had the right then to ask from the appeal tax court an abatement of the assessment and the restoration of the property to the 60-cent rate for city taxes, and that, upon its refusal to make the abatement or to order the restoration of the 60-cent rate, he could appeal within 30 days from such refusal to the Baltimore city court, and, thus having a clear legal remedy, that he could not resort to equity for relief. But we held that section 170, as it then stood, had no relation to the jurisdiction of the appeal tax court, whose jurisdiction was absolutely dependent as to the assessment upon the giving of the notice prescribed in sections 150 and 161A, and as to the classification, upon the giving of reasonable notice, and that section 170 had no relation to void assessments or classifications. We said section 170 "deals with questions arising after a valid, though erroneous, assessment has been made. The remedy against an invalid assessment, one made without jurisdiction to make it, is to strike it down, though the result may be to lose the taxes for that year. The remedy against an assessment valid as an assessment, but illegal because of the manner in which it was made, or erroneous because of under or over valuation, is by application recognizing the jurisdiction to assess, but attacking the legality or regularity of the form of the proceedings under the conceded

[1] The bill alleges that all of the properties of the several plaintiffs mentioned in the proceedings are located in a block in that part of Baltimore city which was annexed thereto by Acts 1888, c. 98, and that said block contains more than 200,000 superficial square feet, and up to the year 1909 was not surrounded by streets improved as required by Acts 1902, c. 130, and that up to and until the year 1909 all said properties were classified for taxation for city purposes under said last-mentioned act at 60 cents on the $100, and all those allegations are established by the undisputed evidence. The bill then further charges that said properties were classified for the years 1909 and 1910 at the full city rate of $1.95 in the $100, and that such classification by the appeal tax court of Baltimore city was illegal and void, both because said block was not subject to such classification, and because the same was made without any notice to any of the plaintiffs, and that none of the plaintiffs knew such classification had been made until after the time allowed by section 170 of the city charter (Acts 1908, c. 167) for appeal to the Baltimore city court. The appellants concede they would have had an adequate remedy at law for the alleged wrongful classification by the appeal thus provided, if due notice of the purpose to make such classifica-jurisdiction." As the demurrer in that case tion had been given them, but allege that the want of due notice rendered the classification void, and entitles them to relief in equity. To sustain this contention, they rely upon the case of Baltimore City v. Poole & Son Co., 97 Md. 67, 54 Atl. 681, decided in 1903. In that case both the assessment and the classification of the plaintiffs' property had been changed, and the bill alleged that no notice of either purpose had been given to the plaintiff. Sections 150 (Laws 1898, c. 123) and 164A (Laws 1900, c. 347) of the city charter expressly required notice to the owner as respects assessments, but there was then no statutory declaration of the power of the appeal tax court to classify property, nor any statutory regulations of the procedure 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.

It was contended by the city in that case that, under section 170 of the city charter,

conceded the jurisdictional defect of want of notice, and the charter contained no provision authorizing the appeal tax court or the Baltimore city court to declare an assessment to be null and void, but only "to reduce or abate" it, we held that relief against a void assessment could only be obtained in equity, and we consequently affirmed the decree of the circuit court. But section 170 of the charter has been repealed and re-enacted by chapter 167 of the Acts of 1908 with some very material changes, in consequence of which the city now renews the contention made by it in the Poole Case, supra, and in considering this contention it will be necessary carefully to compare the original with the amended section.

act of 1908 was to enlarge the power of the Baltimore city court on appeals from the appeal tax court, and to define more clearly

WANNENWETSCH v. MAYOR AND CITY COUNCIL OF BALTIMORE

shall be declared void, when due notice has not been given. Unless such construction is given to that language, the Baltimore city court could not proceed, as directed in the next sentence, "to assess or classify anew" the property in question. A new assessment The person or the city or classification can only be made when the appealing to the said old one has been superseded as void. The Baltimore city court shall have a trial before only object of a bill in equity in such a case the court without the as that before us is to have the assessment intervention of a jury, and the court sitting or classification declared to be null and void, without a jury, shall and, if the Baltimore city court is authorized hear the So to declare upon the same state of facts as has heretofore been required in a court of equity, there can be no occasion to resort to a court of equity. The same language which in giving complete jurisdiction to a court of law created a clear legal remedy took away the right to resort to equity. Our conclusion, therefore, is that upon the ground just considered the decree of the circuit court should be affirmed.

(115 Md. 514)

tiffs' 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 affirmed, 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 sister is the owner, and in order to carry faithfully this agreement, we hereunto set our hands and seals and subscribe our names this second day of December, in the year eighteen hundred and eighty five." The bill further alleges that the three sisters all died in the lifetime of Jane J. Murray, leaving her surviving them, the owner, as it alleges, of said property under and by virtue of said agreement, and that she died on the 26th of January, 1908. The bill also alleges that said property for a long time prior to the acquisition of it by the plaintiff was occupied by him and was in his possession at the time of the filing of the bill; that at the

MURRAY et al. v. KERNEY.
(Court of Appeals of Maryland. April 26,
1911.)

DEEDS (§ 24*)-NATURE-COVENANT TO STAND
SEISED TO USES.

An agreement executed with due formality by four sisters, joint owners of land, reciting that, in case of death of one, the other three "are owners, and if two are taken by death, then the two remaining sisters are the owners, and if one of the two are taken by death, then the last surviving sister is the owner,' if inoperative as a common-law deed to vest title in the surviving sister, was effective as a covenant to stand seised to uses under the

statute of uses.

[Ed. Note. For other cases, see Deeds, Cent. Dig. $$ 45-48; Dec. Dig. § 24.*]

time of the death of the said Jane J. Murray 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.

Bill by John A. Kerney against James E. Murray and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before BOYD, C. J., and PEARCE, THOMAS, PATTISON, and URNER, JJ.

Charles S. Hayden, for appellants. C. Alex. Fairbank, Jr., for appellee.

PATTISON, J. In this case the appellee, plaintiff below, filed his bill alleging that he was the owner, in fee simple, of a lot of land in Baltimore city, situated at the corner formed by the intersection of the west side of Central avenue and the southeast side of Gay street that he had acquired from one Jane J. Murray by deed dated September 13, 1905.

The bill alleges that Jane J. Murray acquired title to this property by written agreement executed on the 2d day of December, 1885, by the said Jane J. Murray and her three sisters, who were at the time owners of said lands as tenants in common. The agreement was executed and acknowledged by them with all the formalities required in the execution and acknowledgment of deeds, and was duly recorded, and is as follows: "We, the undersigned, daughters of the late Peter and Elizabeth Murray, named and subscribed to this instrument of writing, do enter into an agreement that for the benefit of each and all of them named and subscribed to this agreement and are now living in and owners jointly the property being their joint interest left them, Lucy A. Murray,

also embraced in the property mentioned and described in the agreement above mentioned, signed by the said Jane J. Murray and her sisters aforesaid, and which her heirs, after her death, agreed to sell to the North Gay Street Permanent Building & Loan Association of Baltimore City, but, upon examination, the purchaser was not satisfied with the title of Jane J. Murray thereto, its objection being based upon the sufficiency of the agreement above given to pass title to her in said lands, and proceedings were instituted in the circuit court for Baltimore city "for the sale of said property and the ratification of the contract of sale to the said corporation, which proceedings have long since been completed and the title of said adjoining property conveyed to the said corporation."

As the legal sufficiency of the title of Jane J. Murray in and to the lands sold as aforesaid had been questioned, the plaintiff thought it best, as he alleges, to have executed to him by the heirs of Jane J. Murray a confirmatory deed for the property so conveyed unto him by her as aforesaid. To this end he called upon the heirs to execute the confirmatory deed, and all of them executed the same except the defendants, who refused to do so. It was then that he determined to file the bill asking the court, as he did, to construe said agreement, and by its decree "remove any cloud which might exist or be supposed to exist" upon his title to said lands. The defendants Mary J. Murray and William A. Murray answered, stat