(136 Md. 617) needed $500 for his pay roll, and "needed some for the plasterer and some for the FARMERS' & PLANTERS' CO. v. MAYOR bricklayer," and the undisputed fact in the AND COUNCIL OF SALISBURY. case is that he was in need of money for both purposes, and that he used it "to pay the men that were working on the job," and (No. 31.) (Court of Appeals of Maryland. June 17, 1920.) answer swears away equities thereof. swer and the answer swears away the equities "did not use a cent of it" for any other pur-1. Equity 373-Bill will be dismissed where pose. There is no evidence of an express promise by the appellee to apply the money to the payment of the amount he owed the plasterer and the bricklayer engaged on the Frazier house, and the appellee states positively that he never made such a promise. But even if he did it would not amount to fraud, unless he intended, at the time he made the promise, not to keep it, and there is no evidence of such intention. In the case of Johnson V. Stockham, supra, Judge Pearce, speaking for the court, said: "Nor does the record disclose any conduct or circumstances tending to create a suspicion that the debts were in fact fraudulently contracted, notwithstanding the denial of Stockham. The testimony of the appellant, accepted at its ut permit ordinance held valid. 625-Building Ordinance prohibiting the erection or repairing of buildings within city limits without issuance of building permit from the mayor and council, and specifying the matters to be considered on application for such permit, held valid, being a reasonable exercise of the police power granted to the city by Laws 1912, c. 636, § 158E. 3. Municipal corporations 621-Refusal of building permit held not arbitrary. most value, and without regard to Stockham's City's action in refusing to grant permit for construction of addition to building to be countervailing testimony, would only prove a promise to deliver the wheat when threshed-used for the purpose of storing, mixing, and that he might, out of the proceeds of sale, re-bagging fertilizer, taken after careful considtain the debt due him, and it is well settled eration of letters and petitions of those living that, in an action for deceit, a false statement, in the vicinity of the proposed addition, both in order to constitute an actionable fraud, for and against the grant, held not arbitrary. must be of a material fact, at the time, or pre- 4. Municipal corporations 591-Ordinance viously existing, made for the purpose of being cannot confer unlimited discretion. acted on, and not a mere promise for the future. An ordinance cannot confer unlimited disThe representation to be ma-cretion, but must provide for the exercise of terial must be in respect of an ascertainable the discretion according to certain general and fact. * * 'Fraud cannot be predicated of fixed rules, in cases which have been provided a promise not performed, for the purpose of for. avoiding a bargain of any kind.' It is true that where one, at the time intending not * There are five exceptions in the record to rulings of the court below on the evidence. These exceptions were not seriously pressed in this court, and we do not find reversible error in any of the rulings. The evidence referred to in the first exception was not excluded by the court, and the plaintiff got the benefit of the question and answer, and the plaintiff could not have been injured by the admission of the evidence mentioned in the other exceptions. Order affirmed with costs. Appeal from Circuit Court, Wicomico County, in Equity; Jno. R. Pattison, Robt. R. Duer, and Joseph L. Bailey, Judges. "To be officially reported." Bill by the Farmers' & Planters' Company against the Mayor and Council of Salisbury, Md. Decree for defendant, and plaintiff appeals. Affirmed. Thomas H. Lewis, Jr., of Salisbury, for ap pellant. Benjamin A. Johnson, of Salisbury, for appellee. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. STOCKBRIDGE, J. The Maryland General Assembly of 1912, by chapter 636, made certain amendments to the charter of Salisbury. The one with which this case has to do is found in section 158E, and is contained in the following grant of power: "The mayor and council of Salisbury shall have power to pass all by-laws and ordinances not contrary to law, as they may deem necessary for the good government of the city to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) * preserve the health, peace and safety and well- and bagging fertilizer; the front building to being of the inhabitants, and the protection of be 70 feet by 225 feet, two stories high. The property thereof; to prevent and remove all basement walls and underpinning to be of nuisances and obstructions from the streets, concrete and be 18 inches thick; the walls * to regulate the construction or repairing of buildings, specifying the materials of of the first story to be about 14 inches thick which same shall be built, and the granting of and the walls of the second and third stories permits for the construction and repairing of to be about 14 inches thick. The roof to be buildings; and to require a reasonable fee for of slate surfaced. Flues to start from the issuing such permit. * * The mayor and ground and to be at least 17 inches by 17 council * * * are further authorized gener-inches wide." ally to pass all necessary by-laws and ordiSome correspondence subsequently took nances not contrary to law for preservation of health, comfort, convenience, morals, cleanli- place between the officers of the company and ness, peace and good order of the community, the town officials of Salisbury, which termiand for protection of the lives and property nated in a refusal of the application, and the of the citizens and inhabitants of said city, and bill in this case asks that the ordinance alfor the suppression, abatement and discon- ready quoted be declared null and void, that tinuance of nuisances within the limits of said the mayor and city council of Salisbury be city; for the purpose of carrying out the afore- commanded to issue the permit as applied going powers the mayor and council may pass for, that pending the results of the suit the any and all ordinances and by-laws from time to time deemed necessary, and may enforce mayor and council should be enjoined from and insure the observance of such by-laws and interfering with the erection of the building, ordinances in addition to the usual action of and for other relief. debt or such other civil remedies as may exist in such cases by law for the recovery of fees, fines and penalties thereto affixed, they may affix thereto reasonable penalty for default of payment of any fine and cost imposed for a violation of any ordinance or by-law." [1] An answer was filed to this bill, after a demurrer to it had been overruled, and that answer, being filed under oath, denies the equities claimed in the bill. The case was heard on bill and answer. It is a familiar rule of law that where a case is heard upon Acting under this grant of power the may-bill and answer, and the answer swears away or and council of Salisbury enacted the following ordinance: "An ordinance to regulate the erection or rebuilding of buildings in the city of Salisbury, Maryland, and the granting of permits therefor. "Whereas, the mayor and council of Salisbury desire to preserve the health, safety and wellbeing of the inhabitants of Salisbury. the equities of the bill, that the relief asked will not be granted but the bill dismissed. Going beyond this purely technical ground, the case is entirely covered in all of its most essential features by the decision of this court in the case of Easton v. Covey, 74 Md. 262, 22 Atl. 266. [2] The legislative grant of power to the city of Salisbury was clearly, under the de"Section 1. Be it enacted and ordained by cisions in this state, a grant of police power, the mayor and council of Salisbury, Maryland, and the passage of the ordinance was an exthat no person or persons, firm or corporation ercise of the power so granted. In no reshall erect or repair any building within the corporate limits of Salisbury, without first spect, therefore, can the passage of the ordimaking an application and receive a permit to nance be regarded in the light of an ultra do so from the mayor and council of Salisbury, vires act upon the part of the mayor and and which application shall be accompanied council of Salisbury, unless the ordinance by a fee of one dollar which shall be the fee was clearly unreasonable. The grant of powfor every permit so granted, and said appli-er in this case was for the adoption of such cation shall be in writing stating the proposed ordinances as they may deem necessary, and location, the size of the proposed building and the materials to be used and the purpose for none of the subsequent language in the secwhich it is to be used, and any person or per- tion of the act before referred to in any way sons who shall violate the provision of this ordi- tends to derogate from this broad grant of nance shall upon conviction thereof before the power. police justice of Salisbury be fined the sum of $25.00 and the further sum of $5.00 for each and every day from the date the building is commenced, and upon the failure to pay said fine or fines and costs shall be committed to the county jail until fine or fines and costs are paid." The Farmers' & Planters' Company, the appellant, in conformity with the provisions of this ordinance, made an application to the Mayor and council of Salisbury for a permit for the erection of an addition to a building on th west side of Mill street "to be used for the purpose of storing, mixing 111 A.-8 It was said by this court, in speaking through Judge Miller in Easton v. Covey, supra, that an ordinance passed under a similar clause "to regulate the erection of new buildings within the corporate limits by providing that no such building shall be erected without a permit therefor first obtained from the commissioners, is not only reasonable but useful, if not essential to the welfare and prosperity of the town," and this legal proposition has been in no wise modified or limited by any subsequent decision of this court. The cases of Stubbs v. Scott, 127 Md. 86, 95 Atl. 1060, and Brown v. Stubbs, 128 Md. | 2. Mortgages 226-Mortgagee had right to 129, 97 Atl. 227, have fully recognized this assign mortgage, rule; but the facts in those cases were so A mortgagee had a right to assign its mortentirely different from the facts in the pres-gage by deed intended to convey its entire inent case that no logical deduction can be terest in the property, including the mortgage. drawn from either of those decisions, which 3. Execution 264-Sale of mortgagor's inwill strengthen the claim of the appellant in terest gave purchaser only his rights. the case at bar. Nor has the case of Radecke, 49 Md. 217, 33 Am. Rep. 239, any special application. The ordinance held void in that case vested in the mayor of Baltimore an arbitrary right to revoke a permission granted under a general ordinance. [3] In the present case the action of the mayor and council of Salisbury was in its nature discretionary, not arbitrary. There was presented to the mayor and council, prior to the action upon the permit, letters and petitions of those living in the vicinity of the proposed addition, both for and against the grant asked for by the appellant. These appear to have been carefully weighed, and the refusal to have been made only after careful consideration. The cases of Bostock v. Sams, 95 Md. 400, 52 Atl. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394, and Byrne v. Md. Realty Co., 129 Md. 202, 98 Atl. 547, L. R. A. 1917A, 1216, present an entirely different situation, and are without any special application in the present case, and the same may be said of many of the cases cited by the appellant upon its brief, though some of those turn entirely upon the language used in the grant of the power to the municipality or town, and which language is quite different from that used in the act of 1912. [4] It is, of course, true that an ordinance cannot confer an unlimited discretion, but limited to cases which have been provided for, and the manner prescribed by certain general and fixed rules. It was exactly this which the ordinance in question gives, specifying the various matters to be taken into consideration in the exercise of that discre tion. This court, therefore, fully concurs with the circuit court for Wicomico county in the conclusion reached in the present case, and the decree appealed from will accordingly be affirmed. Decree affirmed, with costs. (136 Md. 623) GRIFFIN et al. v. WILMER. (No. 32.) (Court of Appeals of Maryland. June 17, 1920.) 1. Mortgages possession. 187 - Mortgagee entitled to The mortgagee is entitled to possession after default, and before default in cases of leasehold property. A purchaser of a mortgagor's interest can have against the successors of the mortgagee no greater rights than those of the mortgagor. Appeal from Superior Court of Baltimore City; H. Arthur Stump, Judge. "To be officially reported." Petition for writ in the nature of writ of possession by Edwin M. Wilmer, trustee, against J. Frank Griffin and others. From order that the writ issue, defendants appeal. Judgment reversed, Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Frank Driscoll, of Baltimore, for appellants. Alexander H. Robertson and David Ash, both of Baltimore, for appellee. ADKINS, J. Edwin M. Wilmer, as a judgment creditor of J. Frank Griffin, on August 6, 1915, filed a bill in the circuit court of Baltimore city against the said J. Frank Griffin and the Griffin Real Estate & Construction Company of Baltimore city, in which it was alleged that Wilmer was a judgment creditor of Griffin to the extent of $311.40 with interest and costs; that he was unable to find any property or assets of said Griffin out of which said judgment could be made except the interest of said Griffin in the corporation known as the Griffin Real Estate & Construction Company of Baltimore city, and in the property standing in the name of said company; that said corporation is a mere blind or scheme devised by Griffin to enable him to do business, buy and sell real estate, and escape payment of his just debts; that said corporation is merely a cloak under which Griffin is trading and doing business on his own personal account; that there are, among other property recorded in the name of "the Griffin Real Estate & Construction Company," two pieces of leasehold property, viz. a lot and improvements on Warner street, Baltimore city, and a lot and improvements on Columbia avenue, in said city; that said lots were bought by Elijah J. Bond and J. Frank Griffin, personally, as a real estate speculation, and were put in the name of "the Griffin Real Estate & Construc tion Company," with the consent of said Bond, who was informed by said Griffin that that was the name and style under which he personally traded; that the said Bond advanced all the purchase money to finance For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (111 A.) est and estate in said properties, which deed was left for record on August 31, 1918. On January 30, 1919, Edwin M. Wilmer, trustee, the appellee herein, filed in the superior court of Baltimore city a petition for a writ in the nature of a writ of possession, in which J. Frank Griffin, Isaac Merowitz, the Ridge Realty Company, a body corporate, and the savings and loan association, a body corporate, are made defendants, and in which petitions are found the following recitals, viz.: The above-mentioned judicial sale and sheriff's deed; that the said two lots of land and premises are now, respectively, in actual possession of a certain Isaac Merowitz and the Ridge Realty Company, said possessors, respectively, holding under deeds subsequent to the date of the judgment aforesaid;* that the said savings and loan association claims to be the holder of an alleged mortgage on the Warner street property, created subsequent to the judgment aforesaid; that demand has been made on each of the abovenamed defendants, respectively, for the surrender of the possession of the lease and premises aforesaid unto said petitioner, and that said demand has not been complied with. The prayer of the petition is for a writ in the nature of a writ of habere facias possessionem. said deals; that the said Griffin was to se- M. Wilmer, trustee, all said grantor's intercure mortgages, collect rents, handle and finally sell the said properties, and they were to share equally in the profits and losses of said transactions; that "the Griffin Real Estate & Construction Company" has not and cannot have any right, title, or interest, legal or equitable, in said leasehold properties. The prayer of the bill is: That said properties be declared to be the property of J. Frank Griffin and of Elijah J. Bond, "in equal half interest"; that said judgment be declared to be a lien on the half interest of said Griffin in said properties, and on all other interests of Griffin held by and in the name of "the Griffin Real Estate & Construction Company"; and for the appointment of a receiver for the assets of said Griffin and the said corporation. An order nisi was passed on the bill requiring Griffin and "the Griffin Real Estate & Construction Company" to show why the relief prayed should not be granted; a copy of the bill and of the order was served on Griffin individually and on the company by service on Griffin as president. On September 21, 1917, a decree was signed, the case having been submitted and the proceedings read and considered, in which it is decreed that said properties are, as between the parties to said proceedings, the property of J. Frank Griffin and Elijah J. Bond, in common, in equal half interest in each of said properties; that said judgment be declared to be a lien on the undivided half interest of the said J. Frank Griffin in each of the said properties, as well as on all other property of J. Frank Griffin in the state of Maryland; that David Ash be appointed receiver, with power and authority to take charge of the properties, books, papers, and effects of or belonging to the said J. Frank Griffin and "the Griffin Real Estate & Construction Company," and certain other powers, including power to make sales of said properties. The judgment referred to in the above-mentioned proceedings was entered on July 28, 1915, in the court of common pleas of Baltimore city. On June 26, 1918, the said Wilmer filed a petition in the circuit court of Baltimore city for leave to issue a writ of fieri facias as against all of the right, title, and interest of J. Frank Griffin in said properties, and leave was granted by Judge Duffy, then sitting in said court. On August 21, 1918, a writ of fieri facias was issued on said judgment, under which on October 28, 1918, the interest of the defendant therein, J. Frank Griffin, in said properties was sold to Edwin M. Wilmer, trustee, for $20, and on January 2, 1919, the sheriff of Baltimore city signed and acknowledged a deed granting and conveying to the purchaser the interest and estate in said properties sold by the sheriff under said writ. In the meantime Elijah J. Bond had on July 12, 1918, executed a deed granting and conveying to Edwin The respondents filed their answer containing several paragraphs, to all of which petitioner demurred except one, to which he replied. Demurrers were sustained and case went to trial. It is unnecessary for the purpose of our decision to refer more in detail to the answer and replication and the rulings of the court, except to say that by the remaining clause in the answer the important facts in the case were put in issue. The trial court ordered the writ to issue. A number of exceptions were taken, but we shall deal only with the exception reserved to the refusal of the court to direct a verdict for the defendant. The undisputed evidence in the case shows the following facts, viz.: (1) That the leasehold property in controversy was conveyed to the Light Street Savings & Building Association by the following mortgages, respectively, which were offered in evidence, viz.: Mortgage from Henry C. Gartside (who subsequently conveyed his equity of redemption by deed dated June 6, 1913, to the Griffin Real Estate & Construction Company), dated June 6, 1913, and recorded on this same day. Mortgage from the Griffin Real Estate & Construction Company, dated January 16, 1914, and recorded the same day. (2) That the judgment in favor of Edwin M. Wilmer against J. Frank Griffin was entered on July 28, 1915, in a suit begun June 11, 1915. (3) That in neither of the above-mentioned Association, the mortgagee, had been in possession at the time of the filing of the petition in this case, there could be no doubt about the question. mortgages was there any provision permit- So if the Light Street Savings & Building ting the mortgagor to remain in possession. (4) That before the filing of the petitions in this case (January 30, 1919), and, indeed, before the decree in the equity case of Wilmer v. Griffin and the Company (September 21, 1917), there had been default in both of said mortgages. What, then, is the position of Merowitz and the Ridge Realty Company, who were, respectively, in possession as grantees of said mortgagee? (5) That before the filing of the petitions in this case and before the date of said de- It is earnestly contended by appellee's cree the Griffin Real Estate & Construction counsel that these grantees have not the Company, which then held the record title to right of possession because the deeds to them the equity of redemption in the leasehold lots purport to convey an absolute title, their described in both mortgages, granted and grantor having taken a deed from the mortconveyed said lots to the Light Street Sav- gagee company of its equity of redemption ings & Building Association by deed dated after the filing of the bill in this equity case January 18, 1917, subject to the ground rents. to have said property declared to be the in(6) That before the filing of said petition dividual property of Griffin, although said the Light Street Savings & Building Associa- deed was given before the decree in said tion, by deeds dated, respectively, August 21,❘ case. It is more than a serious question 1918, and August 3, 1918, and duly recorded, granted and conveyed said lots to Isaac Merowitz and the Ridge Realty Company, respectively, subject to the respective ground rents. (7) That at the time of the filing of the petition in this case for the writ of habere facias possessionem said last-mentioned grantees were in actual possession of said lots, respectively. There is no evidence in the case legally sufficient to prove that at the time appellee purchased Griffin's interest in the equity of redemption at sheriff's sale he (Griffin) was entitled to possession of the property. On this statement of facts the writ should have been refused and the first prayer of defendants withdrawing the case from the court sitting as a jury should have been granted. [1] There can be no doubt, under the decision in this state, that certainly after default (and before default in cases of leasehold property) the mortgagee is entitled to possession. Jamieson v. Bruce, 6 Gill & J. 72, 26 Am. Dec. 557; McGuire v. Benoit, 33 Md. 186; Bank of Commerce v. Lannahan, 45 Md. 407; Chelton v. Green, 65 Md. 272, 4 Atl. 271; Annapolis R. R. Co. v. Gantt, 39 Md. 140; Deakins v. Rex, 60 Md. 593; Commercial Building & Loan Association v. Robinson, 90 Md. 618, 45 Atl. 449; Gibbs v. Didier, 125 Md. 492, 94 Atl. 100, Ann. Cas. 1916E, 833. whether said equity proceedings had any effect as to the Light Street Savings & Building Association and its grantees, but it is not necessary to decide that question here. It is significant, however, that the decree, by its terms, was confined in its operation to the parties to the suit. [2] There can be no doubt about the right of the said association to assign its mortgage to the said grantees, nor can there be any doubt that in this deed from it to them it intended to convey its entire interest in the property, including the mortgage; so that if nothing more was actually conveyed by the deeds from the association to the said grantees, and if they are not the owners of said lots under said deed, they certainly own what their grantees had the right to convey, which was, at least, its mortgage interest in said lots; and being owners at least of said mortgage interests they were at the time of the filing of the petition in this case entitled to possession, and, it is admitted, were in actual possession. [3] It must be kept in mind that appellee purchased at sheriff's sale only the interest of Griffin, and can have no greater rights than those of the mortgagor. Of course, there was and could be no claim made that the mortgage itself was affected by the subsequent equity proceedings. Judgment reversed, with costs to appel lants. |