its market value, and the purchaser is not had permanently obstructed the alley by the ware of such restrictions, specific perform- erection of a building in its bed. It is true ince of a contract to purchase the land will that neither the street nor the alley had not be decreed. In that case, as in the case been physically opened, but by a decree of now before us, the defense of restrictions up- the circuit court No. 2 of Baltimore city, in on the land was not set up in the answer, but the case of the Druid Park Heights Land & there was evidence before the court, not ex-Improvement Co. v. Bennett et al., it had cepted or objected to, showing the existence been distinctly declared that the street and of restrictions in part analogous to those re-alley in question had been by a certain deed lied on by the defendant here. In this case, dedicated for public use as avenues or streets, differing from the case of Shea v. Evans, the and further requiring the defendants in the testimony was made the matter of special case, among whom was Bennett, to remove exceptions. from the bed of said avenues or streets the stable or other structures now in or upon them or any of them, or within 25 feet from the lines of said avenues or any of them; such removal to be made upon 30 days' notice [2] The evidence as to the restrictions was not given in behalf of the defendant when its president, Mr. Hurst, was originally placed upon the stand, but his examination and cross-examination had been concluded, and he was then recalled after another witness of a desire to use the same as streets or avenues. This would seem to effectually dishad been examined, recalled, not for the purpose of contradicting the intervening testi-pose of the claim that the streets had not been legally opened. mony, but to enable him then for the first time to give evidence in regard to certain restrictions. The exception to this line of testimony at this stage of the case, upon a matter of defense not set up in the answer, nor brought out in his original examination, was a valid one, and the evidence should not have been admitted. [3] The first of these is that: "The property described is not available for development in building lots, the purpose for which it was represented and is not as laid out on the plat filed with the bill of complaint." There is no contradiction in the evidence that Mr. Hurst, the president of the Cityco Company, was thoroughly familiar with the property, familiar not merely in a general way, but precisely and minutely, because he had been over the ground with Mr. Mintz, the agent of the plaintiff, prior to entering into the contract of sale. The business of the Cityco Company was the development of property, and its availability for development must have been just as evident to Mr. Hurst from his personal examination of the land before the contract of sale as after it. Nor was any claim made by Mr. Hurst, or request to be relieved from the purchase of the property upon any such ground, prior to the filing of the answer in this case. The contract made mention of a plat, but it also referred to the deed under which the Friedenwalds derived title. Even assuming that Mr. Hurst entered into the contract in reliance upon his personal inspection of the property and a plat, neither of these could have shown him any covenants for restrictions which might affect the land. These could only appear from an examination of the deeds. [4] The second ground of objection is that a 30-foot street or alley and a street spoken of as Hillsdale street were neither physical [5] The third ground assigned in the answer was that Woodberry avenue, the only other street, lane, or alley giving access to the property, had been entirely shut off by the mayor and city council at Park Heights avenue, so that it was impossible for vehicles of any description to reach the property. The evidence shows that at the time of filing the answer and the taking of the testimony, by reason of regrading, one end of Woodberry avenue had been shut off from public use and access to Park Heights avenue; but it also shows that the other end of Woodberry avenue gave an entirely practicable means for access to and egress from the property in question, and this court cannot presume that, because access from one highway, such as Woodberry avenue, to another highway, such as Park Heights avenue, had been obstructed to traffic, it was bound to remain so for all time. Its condition in this respect in no way differed from what it was when Mr. Hurst made his personal inspection of the property, and was fully known to Mr. Hurst when he entered into the contract of sale. Moreover, it appears that the defendant company owned the land lying between that contracted to be sold and Park Heights avenue, and therefore, if it desired, it might readily construct a means of access. The fourth objection mentioned in the answer was practically but a repetition of the third, and is fully covered by what has been said in that connection. The objection now raised because of certain restrictions imposed by the deed from the Druid Park Heights Company to Friedenwald, if the evidence upon that point was admissible, is the most serious. There is a direct conflict of the evidence whether these restrictions were brought to the knowledge of Mr. Hurst, the preponderance of it being en in connection with the successive steps A. Herman Siskind and Clarence W. Perin the case already enumerated, the entire kins, both of Baltimore, for appellant. omission of all reference to this objection in Hooper S. Miles, of Salisbury (Alonzo L. the answer, and the stage of the testimony Miles, of Salisbury, on the brief), for apwhere this objection is first made, leads to pellee. the conclusion that this objection is "captious and frivolous," to use the language of Judge Miller already quoted. BRISCOE, J. On the 13th of April, 1913, The decree apealed from will accordingly the Maryland Insurance Agency Company, a be affirmed. Decree affirmed, with costs. (130 Md. 220) PERKINS v. PENINSULA TRUST CO. (No. 90.) (Court of Appeals of Maryland. Feb. 14, 1917.) 1. EQUITY 430(3) — DECREE - PETITION TO REOPEN CAUSE. A decree or decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill, and not by petition to vacate and reopen the cause, except where the decree was entered by mistake, or surprise, where the circumstances are such as to satisfy the court that the decree should be set aside, or where the case was not heard upon the merits, as where there was no hearing on the merits to determine the legality and validity of a claim against an insolvent corporation in the hands of receivers, against which an auditor's account, embodying the claim, was filed. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1043–1046.] 2. EQUITY 419-DECREE DEFAULT-VA CATING. Where a decree has been passed by default without a hearing on the merits, a court of equity has power, in the exercise of a sound discretion, to vacate the same in order to let in a meritorious defense. [Ed. Note. For other cases, see Equity, Cent. Dig. $$ 972-985.] 3. CORPORATIONS 568- INSOLVENCY-RECOVERY OF DIVIDEND PAID-LACHES. Where there was nothing on the face of corporate notes to suggest their invalidity and without knowledge thereof, the receiver and creditors of the corporation in insolvency permitted the allowance of a dividend thereon which was paid by the receiver, and more than a year thereafter an application for a second dividend was disallowed on objections of creditors, an application by the receiver, made a few days after such disallowance for an order to open the first dividend and to compel a refundment, was not barred by laches. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2288, 2289.] Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge. "To be officially reported." Petition by Clarence W. Perkins, receiver of the Maryland Insurance Agency Company, against the Peninsula Trust Company, to vacate and set aside enrollment of an order ratifying an auditor's account, stated and filed by defendant against the Agency Company, and to reopen the cause. From a decree dismissing the petition, the receiver appeals. Decree reversed, and cause remanded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. body corporate, was declared to be insolvent, and its assets were placed in the hands of receivers for distribution. In the course of its liquidation and settlement, two auditor's accounts were stated and filed in the circuit court for Baltimore city by the receivers. The first account was filed on the 22d of July, 1914, and in this account there was distributed to the appellee, the Peninsula Trust Company, the sum of $1,628.80 as a dividend upon claims, represented by certain promissory notes of the Maryland Insurance Company held by the appellee company for money borrowed and loans made by it to the agency company. There were no exceptions filed to the allowance of the claims of the appellee company, and the first account, except as to the items specifically excepted to, was finally ratified and confirmed, on the 3d day of August, 1914, and the receivers shortly thereafter paid over to the appellee company the amount allowed it. A second report and account was filed by the receivers on the 16th of October, 1915, and a second dividend, amounting to the sum of $3,307.32, was allowed the appellee company on the same claims or notes on which the first dividend was based. The second dividend was contested by a stockholder of the agency company, and certain exceptions, filed to the allowance of the claim, were sustained by the court below, and by order of court dated the 29th of December, 1915, this claim was disallowed. On appeal to this court, we held that the transaction upon which the appellee's claim was based was illegal and invalid, and the order of the court below, in disallowing the claim, was affirmed. Peninsula Trust Co. v. Johnson, 128 Md. 540, 97 Atl. 925. On the 3d of January, 1916, the appellant on behalf of the creditors of the agency company, filed a petition in the circuit court, of Baltimore city, asking that the enrollment of the order ratifying the first account be vacated and set aside, and the cause reopened for certain reasons alleged therein, and these will be hereafter stated, and considered by us. The appellee in its answer relies upon a single defense, and that is that the enrollment of the final order of ratification, directing the distribution and the payment of the dividend to the appellee, "was conclusive and res adjudicata, as to all matters which were available to the petitioners or to creditors," and could not be called into question, upon the petition, of the appellant. The court below sustained the appellee's con From tention and dismissed the petition. that order this appeal has been taken. [1] It would answer no useful purpose to review the many decisions in this state, announcing the rule or practice, as to when a decree or decretal order which has become enrolled can be discharged, revised, or annulled upon a petition, and not by a bill of review or original bill. In the recent case of Whitlock Cordage Co. v. Hine, 125 Md. 102, 93 Atl. 431, Chief Judge Boyd, after an elaborate review of a long line of cases and authorities, said, while it was not always an easy matter under the authorities to determine the question, yet the general rule as supported by authority undoubtedly was'that: "A decree or decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill, and not by a petition. But there are exceptions to the rule, equally well established as the rule itself, which are generally classified as follows: (1) In cases not heard upon the merits; (2) where the circumstances are such as to satisfy the court that the decree should be set aside; and (3) where the decree was entered by mistake or surprise." See Foxwell v. Foxwell, 118 Md. 471, 84 Atl. 552; Straus v. Rost, 67 Md. 465, 10 Atl. 74; Mallery v. Quinn, 88 Md. 38, 40 Atl. 1079; Gechter v. Gechter, 51 Md. 187; Primrose v. Wright, 102 Md. 109, 62 Atl. 238. Under the admitted facts and circumstances disclosed by the record, in the case now under consideration, we think that the appellant's case, plainly falls within the exceptions stated to the general rule by the authorities cited, and that he was entitled to the relief sought by his petition. The promissory notes, upon which the dividend in the first audit was declared, it will be seen, are the same claims upon which the appellee was allowed a distribution in the second audit. In Peninsula Insurance Company v. Johnson, 128 Md. 535, 97 Atl. 925, this court held that these notes were illegal and invalid, and were not proper claims to be paid by the receivers out of the funds of the insolvent estate. While it is true that the decision in the Johnson Case was subsequent to the first audit, it is clear from the record, there was no hearing on the merits to determine the legality and validity of the appellee's claim as allowed in the first account. Oliver v. Palmer, 11 Gill & J. 137; Whitlock v. Hine, 125 Md. 96, 93 Atl. 431. In the agreed statement of facts, it is said that the first report and account of the receivers in this cause was stated for the purpose of testing the legal status of a certain contract between the Maryland Insurance Agency Company and the Maryland Life Insurance Company, which contract formed a part of the assets of the Maryland Insurance Agency Company, and that the said purpose was communicated to the officers of the Peninsula Trust Company. And in paragraph 4 of the agreed statement of facts it is further stated, at the time of the filing and ratification of the audit of July 22, 1914, the Penin sula Trust Company was in process of dissolution and liquidation; that in September, 1914, after the payment to the Peninsula Trust Company by the receivers of the Maryland Insurance Agency Company of the sum of $1,628.80, the Peninsula Trust Company, through its trustee made a distribution among its stockholders and declared a dividend of 82 per cent.; that subsequently to wit, in February, 1916, the said Peninsula Trust Company, having realized on its other assets, approximately $20,000, declared a further dividend of 11 per cent., and that the Peninsula Trust Company has now in hand about $2,600, balance left over from all sources. [2] In First National Bank v. Eccleston, 48 Md. 145, it was held that where a decree has been passed by default without a hearing on the merits, a court of equity has power, in the exercise of a sound discretion, to vacate the enrollment in order to let in a meritorious defense, and this may be done upon petition without a bill of review or an original bill for fraud. Straus v. Rost, 67 Md. 478, 10 Atl. 74, and cases referred to in former part of this opinion. [3] There was nothing upon the face of these notes to suggest that they were illegal and invalid, and it is alleged in the petition that neither the receivers nor any of the creditors had any knowledge of the facts and circumstances at the time of the ratification of the first audit, and were not in a position at that time to except to these claims. That it was not until an audit under the order of court was made of the books and records of the company, that the facts were disclosed, and upon which the exceptions were based to the second audit, and the notes were declared to be invalid. There is nothing in the case to show ⚫or to charge the appellant with laches or delay, in filing the petition. The order of the court below sustaining the exceptions to the second audit was passed on the 29th of December, 1915, and the petition in this case to reopen the first audit was filed on the 3d of January, 1916. The lapse of time, then, could not, according to the circumstances of the case, be considered in any way as a bar to the relief asked to open the enrollment. In Herbert v. Rowles, 30 Md. 271, this court adopted the language of Lord Harwick in Kemp v. Squire, 1 Ves. Sr. 205, that the power of the court to open the enrollment is a discretionary power to be exercised or not according to the circumstances of the case, as being applicable, as well to the time when the petition is to be filed as in other respects. First National Bank v. Eccleston, 48 Md. 145; Whitlock Cordage Co. v. Hine, 125 Md. 109, 93 Atl. 431. In this case it appears from the agreed statement of facts that the appellee company "has now in hand about $2,600 balance left over from all sources," a sufficient fund out of which, the amount improperly distributed to it, in the first audit, can be returned to the appellant for the bona fide creditors of the dedication and acceptance of streets included within such lands. agency company. Being of opinion that the facts and circumstances disclosed by the record in this case were sufficient to warrant the court below, in the exercise of a sound discretion, to have vacated the enrollment of the order, or decree of the first audit dated 22d of July, 1914, we shall reverse the order appealed from, dismissing the petition, and remand the cause, for further proceedings; the costs to be paid by the appellee company. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 50-54.] 7. DEDICATION 34-TIME OF ACCEPTANCE. To constitute a dedication and acceptance of streets, it is not required that the town accept the dedication at once, or ordinarily within any particular time. [Ed. Note. For other cases, see Dedication, Cent. Dig. § 67.] 8. DEDICATION 29-TIME OF ACCEPTANCE. Dedication of streets may be revoked where no rights of third parties have accrued, or, havDecree reversed, and cause remanded, with ing accrued, have been extinguished by acquisicosts to the appellant. tion by the landowner. (130 Md. 297) BEALE et al. v. TOWN OF TAKOMA PARK et al. (No. 12.) ACCEPTANCE Acceptance of dedicated streets by munici(Court of Appeals of Maryland. Feb. 15, 1917.) palities may be either express or may be implied from improvements made thereon. 1. DEDICATION 44 [Ed. Note. For other cases, see Dedication, Cent. Dig. 88 69, 71.] EVI DENCE. Proof that trustees under creditors' bill sold land with reference to proposed streets, that purchasers and their successors in title thereafter dealt with such property with reference to such streets, that water pipes were laid in some of such streets, with the understanding that when water mains were laid assessments therefor should be paid, and that the officers of the town had spent money on such streets, held to show a dedication and acceptance of such streets. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 85-87.] 2. DEDICATION 19(5) TION. IMPLIED DEDICA The sale of land with reference to streets designated as boundaries on maps or in conveyance implies a covenant that the purchaser shall have the use of such streets. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 35, 46.] 3. EMINENT DOMAIN DITIONAL SERVITUDE. 119(8)-STREETS-AD 10. DEDICATION DENCE. 35(3)—ACCEPTANCE-EVI Acceptance of streets dedicated held sufficiently shown by evidence that the town had annually run a road scraper over such streets, and had made other expenditures of money. [Ed. Note.-For other cases, see Dedication, Cent. Dig. §§ 69, 75.] 11. EMINENT DOMAIN 167(1) STREET IMPROVEMENTS- LAND DEDICATED-STATUTES. Code Pub. Loc. Laws, art. 16, § 614, as codified by Acts 1912, c. 790 (Acts 1896, c. 310, § 31), relating to the taking of private property for public use, has no application to the improvement of streets dedicated to public use and accepted by the municipality. [Ed. Note. For other cases, see Eminent Do main, Cent. Dig. §§ 451, 454.] The use of streets for supplying inhabitants of town with water is not an additional servitude, but only a proper or necessary use incident to the street, and the adjoining owner, though he own the fee to the center of the street, is not entitled to compensation as for a new servitude. [Ed. Note. For other cases, see Eminent Do-sufficient; article 16, § 616 (Acts 1896, c. 310, § main, Cent. Dig. § 313.] 33), requiring three weeks' notice, having no application to such proceedings. 4. DEDICATION 44 Code Pub. Loc. Laws, art. 16, § 626, providing that assessment for water mains can only be made against the frontage of a corner lot except in case of improvement on the side of the prop erty, when assessment can be made only when the main is in excess of 100 feet, does not prevent the assessment for less than 100 feet against a lot adjoining corner lot, although both lots are owned by the same person. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1113.] 14. MUNICIPAL CORPORATIONS 488, 489(1) -STREET IMPROVEMENTS-ASSESSMENT-NoTICES. Owners of lots assessed for water main improvement who actually received notices of assessment, and who were not misled at any stage of the proceedings, cannot be heard to make technical objections as to publication and posting of such notices. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1147, 1152.] Appeal from Circuit Court, Montgomery County, in Equity; Edward C. Peter, Judge. Bill by Katharine C. Beale and others against the Town of Takoma Park and others to restrain the enforcement of special assessments, and to have such assessments declared void. Decree for defendants, and plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, and STOCKBRIDGE, JJ. George H. Lamar and W. Gwynn Gardiner, both of Washington, D. C., for appellants. Charles W, Prettyman, of Rockville (Talbott & Pretty man, of Rockville, on the brief), for appellees. BOYD, C. J. The appellants filed a bill in equity to enjoin the defendants from selling made or offering for sale their property situated on Grant avenue and Hancock avenue on what is known as General S. S. Carroll's addition to Takoma Park, Md., for the enforcement of special assessments against their lands for the extension of a water main on Grant avenue and a four-inch main on Hancock avenue, and to have said special assessment declared null and void. The defendants are the town of Takoma Park and the mayor and councilmen of said town, individually. Takoma Park was first incorporated in 1890, and the charter was amended by chapter 310 of the Acts of 1896, which, with some other amendments, constitute sections 571 to 633, inclusive, of article 16 of the Code of Public Local Laws, title Montgomery county, as codified by chapter 790 of the Acts of 1912. The principal questions involved are: First, whether there has been a dedication of the streets or avenues on which the water mains were laid; and, second, whether assuming they had been so dedicated the requirements of the charter have been complied with in making the assessments and offering the properties for sale. First. In 1893 a creditors' bill was filed to sell the lands of General S. S. Carroll, deceased. The defendants were his widow, his daughter, Katharine C. Beale, and John 'W. Beale, her husband, who are plaintiffs in this case, and his son Samuel S. Carroll, Jr. A decree was passed, in which Blair Lee and Charles W. Prettyman were appointed trustees to sell the property. On July 13, 1893, the trustees reported to the court that they had the portion of the land belonging to the late S. S. Carroll, which was separated from the rest of his land by a street known as Carroll avenue, and containing about 334 acres, divided by a competent surveyor into squares or sections with proposed streets laid down thereon, as would therewith filed; that they offered the property for sale in sections or parcels in accordance with the plat, and had sold section 1 to George N. Beale. That sale was duly ratified. A copy of the plat was filed with the bill in this case. Carroll avenue was already in existence when the plat was made, being one of the established streets of the town. Hancock avenue is nearly parallel with Carroll avenue, and is the only street, in the subdivision, running in that direction, laid out on the plat. While they are not strictly so, Grant, Lee, Sherman, and Sheridan avenues may be said to be at right angles with Carroll avenue. They are parallel to each other, and cross Hancock avenue. There are no other streets on the plat, except Carroll, which borders on, but is not a part of, the tract subdivided. On December 5, 1894, the trustees filed another report, stating that they had again offered the property at public auction, and that: by said trustees that Hancock avenue as laid "The plat was shown and it was announced down on said plat would be dedicated to those purchasing lots as a right of way to and from the same, and the land included in. said avenue would be deducted from the area of the parcels cated on said plat as the east half of, 25 feet sold, and also that that portion of land indiin width, Grant avenue would be in like manner reserved as a right of way south from its intersection with Hancock avenue for the use of the lot purchasers." They then reported a sale to George N. Beale of section 3, showing that they had deducted the area contained in the streets. The report concluded as follows: "Your trustees also desire the assent of the court to their dedication of the land contained in the space marked Hancock street and the east 25 feet of the width of Grant street south of Hancock street, as a right of way for those purchasing lots or parcels of the land." That sale was ratified in the usual form, and while there was no special reference to it in the order, the ratification was an approval of the division of the property. The deed of the trustees to George N. Beale for section 1 conveyed the land to the middle of Grant street, and the one for section 3, after referring to the plat for a description, granted to him a right of way over Hancock avenue from the line of Lee avenue to the land of H. P. R. Holt, and also a right of way over Grant avenue, lying south of Hancock avenue, and added that: "The rights of way of parts of streets herein expressly set forth are the only rights of way appurtenant to the said section 3 over the land in said cause so decreed to be sold." By the will of George N. Beale, dated March 11, 1907, he left to his widow for life all of his property, and upon her death he left to his son, John W. Beale, certain properties, including "the lots with the three (3) houses thereon on the south side of Grant avenue, Takoma Park, Maryland," and to his daughter certain properties including “all of |