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ing that as to the construction of the paper writing or agreement mentioned in the bill, and as to the relief prayed therein, they consented to and desired that the court should paSS Such decree as to it might seem just and proper in the premises. The other defendants, James E. Murray and Thomas F. Murray, also answered, neither admitting nor denying the things alleged in the bill, but requiring proof thereof. To these answers the general replication Was filed, and the testimony of the plaintiff alone was thereafter taken, which substantially sustains the allegations Of the bill. The question presented by this appeal is, Did Jane J. Murray, the survivor of the Sisters, who were, as it is conceded, at the time of the execution of the paper Writing above set forth the owners of said land inVolved in these proceedings as tenants in Common, acquire their interest therein under and by virtue of such written agreement? It is not difficult to ascertain the meaning Of Said paper Writing. It Was evidently the purpose and intention of the sisters that they should continue to own said property So long as all of them should live, and upon the death of any one of them the three Surviving sisters should be the owners of said property, and upon the death of the second sister the two surviving sisters should be the owners thereof, and, upon the death of the third sister, the surviving sister was to become the owner of the entire interest formerly held by the four sisters, or the owner of the property. But is this instrument of Writing legally sufficient to effect the purpose and meaning aforesaid? “Where the intent of the grantor to pass the land is apparent, if for any reaSOn the deed or instrument by which the transfer of title Was intended to be effected cannot operate in the Way contemplated by the parties, the court, if possible, will give it effect in Some other way, and judges have been very astute in Such CaSeS in their endeavorS to make the conveyance operative one way or the other to carry into effect the intention of the grantor or donor.” Bank of U. S. v. Housman, 6 Paige (N. Y.) 534. * If for any of the reasons assigned by the appellant the instrument of writing mentioned in this case should be inoperative as a Common-law deed, We think that it is effective as a covenant to stand seised to uses under the statute of uses. Blackstone defines a covenant to stand seised to uses as “a Species of conveyance by which a man Seised of lands, covenants in consideration of blood and marriage that he will stand seised of the same to the use of his child, Wife or kinsman, for life, in tail, or in fee. But this conveyance can only operate when made upon such weighty and interesting considerations as those of blood and marriage.” Book 2, 338. “No particular word or form
MURRAY. V. KERNEY 7
of words is necessary to constitute a “covenant to stand seised. The consideration is the chief requisite to characterize it and to support it as such a conveyance. This consideration is blood and marriage. If the consideration appears in a deed, though there be no express words of consideration, yet it is sufficient to raise a use by way of conveyance.” Barry v. Shelby, 5 Tenn. 229, 231. Lord Coke, in treating the Statute of Uses, says: “The intention of the parties is the principal foundation of the creation of uses.” And in Slay V. Mehan, 1 Lewt. 782, the court says: “There is no covenant that admits of such a variety of words as that of a covenant to stand seised.” Hayes V. Kershow, 1 Sandf. Ch. (N.Y.) 263. “The covenant must, of course, be by deed in order to Constitute it a covenant; and the usual term employed in creating it is “COVenant, though any other words may be adopted which are tantamount thereto.” 2 Washburn on Real Property, § 1379. The deed or instrument of writing that was before the court in the case of Fisher V. Strickler, 10 Pa. 348, 51 Am. Dec. 488, Was as follows: “Now, know ye, that we the said Jacob Strickler and Christian Strickler, have this day agreed With each other, that in case if one of them shall happen to die unmarried, or intermarried and Without lawful issue or issues that should arrive to the age of twenty one years, that then and in that CaSe the Survivor of them shall be the sole heir of the deceased One both to the real and personal estate of the deceased, Without any further deed or conveyance; to hold the real estate as well as the personal estate of the deceased unto the survivor and to his heirs and assigns forever.” The court in adopting the opinion of the lower court said: “The instrument Of Writing Set forth in this case is What is technically called a “covenant to stand seised to uses. The words are sufficient to create the covenant, the intention being apparent on the face of the deed that each party should stand seised to the use of the other Surviving him under the circumstances stated. And the consideration of natural love, though not expressed, is manifest from the relation of the parties. Milbourn v. Salkeld, Willes, 673; Bedell’s Case, 7 Rep. 40; Crossing v. Scudamore, 1, Ventr. 137; 3 Cruise's Dig. Part IV. 186–190.” In this case, as it is conceded, the four sisters were Seised in fee, as tenants in common, of the lands in question, and, being so Seised, executed the deed or agreement above Set forth. Each WaS Seised of a One-fourth undivided interest in said land, and by this deed or instrument of writing each covenanted to Stand Seised Of her interest therein to her use during her life, and upon her death to the use of such of her sisters as survived her, Successively to and including the last Survivor, Who became Seised thereby in fee of the interest of all the sisters in said lands.
BURKE, J. By Acts 1910, c. 305, section 21 of the act of 1908, chapter 79 of the Public Local Laws of Prince George's county, Was repealed and re-enacted as sections 21a, 21b, and 21c. These sections, which Were intended to be amendments to the charter of Hyattsville in Prince George's county, provided for the construction of sidewalks, curbs, gutters, and roadbeds, and certain definite and quite full provisions were made by the act for street improvement, for raising money for that purpose, and for the assessment of the cost of the work upon the abutting land. By section 2 it was declared that the act should have no force or effect “unless the same shall be approved by a majority of the votes cast at a special election to be held in the said town of Hyattsville, and that the said special election shall be held at the same time and place as the election to be held in the said town on the first Monday in May, 1910, for mayor and COImmon Council for Said toWW, for which
said special election ballots shall be prepared having printed on them “For the Act to Improve the Streets, and ‘Against the Act to Improve the Streets.” If at Said election the majority of the Votes cast shall be “For the Act to Improve the Streets, then and in that event the act shall have full force and effect, or if, on the contrary, the majority of the Votes cast shall be ‘Against the Act to Improve the Streets then this act shall be null and Void.” The act Was Submitted as provided to the Voters of the town of Hyattsville at the election held therein on the first Monday in May, 1910; but the ballotS Voted at that election had printed on them the words “For the Road Bill,” and “Against the Road Bill,” instead of the Words, “For the Act to Improve the Streets,” and “Against the Act to Improve the Streets,” as directed by the act. The majority of the ballots cast at the election were marked “For the Road Bill,” and, after canvassing the vote, the mayor and common COuncil declared the act to be in full force and effect. Acting under the power conferred by the act, the mayor and common council passed an ordinance for the improvement of the road bed of Spencer street, one of the streets of the municipal corporation, and also providing for notice to the owners of abutting property, and for the assessment for the cost of improvement against Such property. The appellant is the owner of fee-simple lots abutting on the south side of Spencer Street in the town of Hyattsville. He filed . his bill of complaint in the circuit court for Prince George's county for an injunction to restrain the mayor and common council from making any aSSeSSment against his property for the improvement of the roadbed of Spencer street, and from enforcing any assessment against his property for that improVement, and for Other and further relief. After reciting the facts we have stated, the bill charges that the mayor and Common council of Hyattsville, against the objections of the appellant, “directed that Spencer Street be forthwith macadamized, and that a notice of the intention of the mayor and common council so to do be published in the two local papers, which action was taken, all of which will more fully appear by reference to exhibit C hereto attached, and made a part hereof; that the said mayor and common council are now proceeding to macadamize Said Spencer Street, and are threatening to levy an aSSeSSment for the COSt thereof against the property abutting on said street, of which the plaintiff is the OWner Of three lots, as hereinbefore Set forth; that they are further threatening that in the event that Said aSSeSSment Shall not be duly paid to cause the property of
this petitioner to be sold in the Same manner as taxes due the town of Hyattsville are enforced under the provisions Of chapter 79 of the Acts of the General ASSembly Of 1908, and that meanwhile such assessment Constitutes an apparent lien and cloud upon the title of the plaintiff, and interfereS With the beneficial enjoyment of his property.” The ground upon which the relief prayed for is asked is that the act under Which the municipality is acting in improving the street has never become effective and operative, beCauSe the ballotS cast at the election Were not prepared in strict conformity to the requirements of its provisions. The defendant demurred to the Whole bill. The lower Court Sustained the demurrer and dismissed the bill, and from this ruling the plaintiff has brought this appeal. It is not alleged that the voters were deceived, misled, or confused by the form of the ballot as actually prepared. Nor is there any Charge Of fraud against the Voters or election officers. Nor is it claimed that the result of the election as declared by the ImayOr and COmmon COuncil Was not COrrect. Indeed, it may be taken as conceded that a majority of the votes cast at the election Were marked “For the Road Bill,” and that the election in all respects was fair. The simple and sole question in the case is this: Did the preparation and voting of the ballots in the manner in which they were prepared and voted prevent the act from becoming a valid and effective law? If so, it can Only be because the provisions of the act relating to the form of the ballot are mandatory, and to be strictly observed. We do not think that the form of the ballot as prepared was an essential departure from the requirements of the act, and it would Seem to be reasonably certain that the Voters understood that they were voting for or against the approval of this particular act, and did approve it by a majority vote. The Court ought not to set aside their clearly expressed will, unless required to do so by Some imperative rule of law. Mr. McCrary in his work on Elections (section 190) says: “If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold Whether the particular act in question goes to the merits, or affects the result of the election, or not. Such a statute is imperative, and all consideration touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, that Statute Simply provides that certain acts or things Shall be done within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actu
CARR. v. MAYOR, ETC., OF HIYATTSVILLE 9
al merits of the election.” The rule is thus stated in Paine on Elections, § 498: “In general, those statutory provisions which fix the day and the place of the election and the qualification of the voters are substantial and mandatory, while those which relate to the mode of procedure in the election, and to the record and return of the results, are formal and directory. Statutory provisions relating to elections are not mandatory aS to the people by the circumstance that the officers of the election are subjected to a criminal liability for their violation. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the result. Generally such rules are directory, and not mandatory, and a departure from the mode prescribed will not vitiate an election, if the irregularities do not deprive any legal Voter of his Vote, or admit an illegal vote, or cast an uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from them.” The rule stated by these authors appears to be adopted by the great majority of the courts in this country, and in the light of these principles we are of opinion that the provisions as to the form of the ballot to be used at the special election Were merely directory, and that the failure to follow strictly the form prescribed did not affect the validity of the election. Whether the failure to follow strictly directions of this nature would render an election null and void must depend in all cases upon the intention of the Legislature. This intention may be manifested either by express declaration, or by a consideration of the general Scope and policy of the act. Where it appears that it was the intention of the Legislature that a strict compliance With the provisions of the act should be a prerequisite or condition precedent to the Validity of the election, a failure to observe them Will a Void the election. The plain purpose of the Legislature was that this act should become effective, if approved by a majority of the voters of the Special election, and the object of providing the form of ballot was to ascertain the will of the majority of the voters upon the question of its approval, and since that majority did approve the act under the form of ballot used, which was substantially, but not Strictly, in the words provided in the act, the Will of the majority should not be set aside for any of the reasons stated in the bill. The voters undoubtedly knew they were voting upon the question of the approval or disapproval of the act, and, having settled that question at a fair election, the object Which the Legislature had in view has been gratified, and the act should be held to be in full force and effect. This COnclusion is Supported by What appears to be the great weight of authority in the American courts. The following are a few of the cases in which the principles stated have been recognized and applied: Gass v. State, 34 Ind. 425; Barnes V. Pike County, 51 Miss. 305; Fry v. Booth, 19 Ohio St. 25; Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; Du Berry v. Nicholson, 102 N. C. 465, 9 S. E. 545, 11 Am. St. Rep. 767; Waggoner v. Russell, 34 Neb. 116, 51 N. W. 465; People v. Cooke, 34 Barb. (N. Y.) 259; Jones V. State, 1 Kan. 274; State ex rel. Mize W. McElroy, 44 La. Ann. 796, 11 South. 133, 16 L. R. A. 278, 32 Am. St. Rep. 355. The Legislature did not expressly declare that the use of the prescribed form of ballot was essential to the validity of the election, nor does it appear from any facts Stated in the bill that the Omission to uSe that form of ballot in any way affected the actual merits of the election. The Whole case made by the bill rests upon the mere mistake, or error in the preparation of the ballot, and for the reasons stated and upon the authorities cited the Order appealed from Will be affirmed. Order affirmed, with costs.
(115 Md. 506) STATE v. GAMBRILL.
(Court of Appeals of Maryland. April 19, 1911.)
1. STATUTES (§ 161*)—REPEAL—REPUGNANT PROVISIONS. If two provisions of a statute on the same subject are repugnant, in that they cannot both stand together and be executed at the same time, the later statute impliedly repeals the earlier one to the extent of the repugnancy. [Ed. Note:—For other cases, see Statutes, Cent. Dig. §§ 230–234; Dec. Dig. § 161.*]
2. STATUTEs (§ 167*)—REPEAL–IMPLIED REPEAL. A subsequent statute subject-matter of a former statute and intended as a substitute therefor repeals it, though the subsequent statute contains no express repeal. [Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 242, 243; Dec. Dig. § 167.*]
3. STATUTES (§ 161*)—REPEAL–IMPLIED REPEAL–REPUGNANT PROVISIONS.
Act 1876, c. 262, § 6, was substantially inserted in Code Pub. Gen. Laws 1904, under the title “Bills of Lading, Storage and Elevator Receipts,” as article 14, § 10, and under the title “Crimes and Punishments” as article 27, $ 194, the last section providing that no warehouseman or person having issued any receipt for goods as on deposit with him shall issue any other receipt for the same goods until the first is canceled, and shall not part with the goods covered by the outstanding receipt except to the holder without canceling such receipt, and makes any corporation or agent thereof who willfully violates the section guilty of a misdemeanor, and punishable by fine of not less than $100 or more than $5,000, and imprisonment for not less than one nor more than three years. The uniform bills of lading act (Acts 1910, c. 336) is entitled “An act to re
revising the whole
peal article 14 of the Code of Public General Laws of 1904, * * * and to re-enact said article 14 with amendments under the title ‘Bills of Lading.’” The uniform warehouse receipts act (Acts 1910, c. 400) is entitled, “An act to add a new and additional article to the Code of Public General Laws of 1904, to follow immediately after article 14, said new article to be designated as article 14a under the title of ‘Warehouse Receipts.’” And section 57 requires it to be interpreted to effectuate its general purposes to make uniform laws on the subject, and section 52 makes any warehouseman or his agent who issues a duplicate receipt knowing that a former receipt for the Same goods is uncanceled, without marking it “duplicate,” except in case of a lost or destroyed, receipt, after proceedings as provided in the act, guilty of a crime, and punishable by imprisonment not exceeding five years or by fine not exceeding $5,000, or both. Neither chapter
36 nor chapter 406 expressly repealed section 194 of the Code of 1904. Held, that section 194 was impliedly repealed by Acts 1910, c. 406, § 52; the penalties imposed by the two sections being repugnant, so that they could not stand together.
BRISCOE, J. The appellee was indicted on the 5th day of May, 1910, in the criminal Court of Baltimore city for the alleged Vio. lation of section 194 of article 27 of the Code of Public General Laws of 1904, entitled, “Crimes and Punishments.” The indictment, in substance, alleges that the traverser on the 27th day of August, in the year 1908, being an agent and officer of the Roxbury Distilling Company, a Corporation, unlawfully did willfully issue a certain receipt of the Said corporation, dated the 27th day Of August, 1908, numbered 33.5, to a certain person unknown, for 125 barrels of rye whisky, being on deposit, and under the control of the Said corporation, without, before the issuance of the receipt, having canceled and destroyed a certain other receipt, then outstanding, for the same number of barrels of whisky previously issued on the 17th day of June, in the year 1907, to the order of the Citizens' National Bank of Baltimore, contrary to the form of the act of assembly in Such case made and provided, etc.
The material part of the section of the Code upon Which the indictment restS is as follows: “No Warehouseman Or Corporation or person whatsoever having issued or caus
ed to be issued or having outstanding and iSSued by an agent or officer of Such person or corporation as aforesaid any receipt, acceptance of order or other voucher for goods, Chattels Or Commodities as On deposit Or the control of such person or corporation shall issue any other receipt, acceptance of order Or Other WOucher WhatSOever for the Same, Or any part thereof, until the said first issued instrument shall have been returned and Canceled Or destroyed; and no perSon Or Corporation whatsoever having issued Or having outstanding, as aforesaid, any such receipt, acceptance of order or other voucher aforesaid, and no agent or officer of any such person or corporation shall part with, deliver or remove or permit to be delivered or removed the goods, chattels or commodities in Such instrument named Or described, Or any part thereof, except only to or by the holder of Said instrument, or upon his Order, and upon the presentation of Said instrument with his indorsement in every case, or without canceling or destroying said instrument in Case of COmplete delivery Or removal Or indorsing thereon the quantity and description of the goods, chattels and commodities, delivered or removed, and the names of the persons to whom delivered, or by Whom removed in case such delivery or removal shall be partial Only ; and any principal perSon Or Corporation or agent Or Officer of any perSon or corporation willfully violating this section or any of the provisions thereof Shall be guilty of misdemeanor, punishable by a fine of not less than one thousand nor more than five thousand dollars, and imprisonment in the penitentiary for a period of not less than one year, nor more than three years in the discretion of the Court.” A demurrer to the indictment WaS SuStained by the Court below and a judgment entered thereon for the traverser. From the judgment thus entered, the State has taken this appeal.. It is contended upon the part of the traverser, first, that Section 194 of article 27 Of the Code has been repealed by chapters 336 and 406 of the Acts of 1910, and, there being no saving clause in the repealing statutes, the indictment must fall; Secondly, that even if Section 194 of article 27 is still in force, and unrepealed, “the receipt” set forth in the indictment is not a receipt or Order within the meaning and the terms of the act, and the indictment therefore charged no offense Within the Statute. It is Obvious We think that, if either One of the grounds here relied upon by the traverser is sound, the demurrer was Well Sustained in the Court below, and its judgment Will have to be affirmed. The question involved in the first proposition, as to whether the legislation of 1910 (chapter 406) operates as a repeal of Section 194 of article 27 Of the Code, is not free from difficulty, and this difficulty arises from a double codification of Section 6 of the
act of 1876 in the Code of 1888, and inserted therein in its original form, in tW0 Separate and distinct articles, to wit, in article 14, Section 6, tit. “Bills of Lading, Storage and Elevator Receipts,” and in article 27, § 119, tit. “Crimes and Punishments.” And in the present Code (1904) the two penal sections, as previously codified, Were recodified as section 10 of article 14, and as section 194 of article 27, the section here in dispute. It is conceded that the tWO SectionS are identical, and, except for some unimportant changes, are as originally enacted by the act of 1876, and, as codified, in the Code of 1888. In this State of the law, as then applicable to the offense here charged against the appellee, the Legislature, during its sesSion of 1910, passed and adopted tWO acts Of assembly, one relating to bills of lading, and known as the “Uniform Bills of Lading Act,” (chapter 336, Acts 1910), and the other, relating to “Warehouse Receipts” and to be cited, as the uniform warehouse receipts acts (chapter 406, Acts 1910). The title of the bills of lading act is “An act to repeal article 14, of the Code of Public General Laws of 1904, title ‘Bills of Lading, Storage and EleVator ReceiptS and to re-enact Said article 14, with amendments under the title ‘Bills of Lading.’” Now it is admitted by the state that article 14, including Section 10 (the duplicate section), was repealed in toto by Acts 1910, c. 336, and an entirely new scheme of legislation relating to bills of lading Was adopted and Substituted therefor, but that article 27, § 194, was not repealed by either act. The title Of the uniform Warehouse receipts act is an act to add a new and additional article to the Code of Public General Laws of 1904 to follow immediately after article 14, Said new and additional article to be designated as article 14A, under the title “Warehouse Receipts.” By section 57 of this act it is expressly provided that this act shall be SO interpreted and Construed as to effectuate its general purpose to make uniform the law Of those States Which enact it, and, as Stated by the appellee in his brief, it is now the new uniform warehouse receipts act, adopted by 19 states and territories of the United States. The Various penalties for the violation of the provisions of this act, including the offense here charged, are fully set out in the act. By Section 52 it is provided: “A Warehouseman, or any officer, agent or servant of a Warehouseman, Who issues or aids in isSuing a duplicate Or additional negotiable receipt for goods, knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncanceled, Without plainly placing upon the face thereof the word “duplicate, except in the case of a lost or destroyed receipt after proceedingS as provided for in Section 14, Shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not