up by the orphans' court and sent to a court of law for trial neither side to the contest has control of them, embody propositions conducive to the orderly and efficient administration of justice which apply with special propriety to the regulation of proceedings founded on caveats to wills under our testamentary system. Although issues framed on caveats are triable in courts of law, their trial differs from the ordinary action at law between opposing suitors, in that it is in the nature of a proceeding in rem, and each side bears a part of the burden of proof. Cecil v. Cecil, 19 Md. 80, 81 Am. Dec. 626; Levy v. Levy, 28 Md. 31. Furthermore, other persons than the parties to the proceeding, such as creditors, heirs at law, next of kin, legatees, or devisees, may be and usually are directly interested in the result of the caveat. For these reasons and because a sound public policy requires that the settlement of the estates of deceased persons be made without unreasonable expense or delay, we are of opinion that, after issues have been framed, covering all of the grounds relied on in a caveat to a will and sent to a court of law for trial, the caveator should not be permitted to dismiss them for the purpose of filing a new caveat without 'the consent of the caveatee.

In the present case the caveat, alleging undue influence, want of testamentary capacity, and other grounds, was filed on January 4, 1904, and issues fully covering all of the reasons alleged in the caveat for refusing probate of the alleged will were sent by the orphans' court to a court of law on March 1st of the same year. After various delays covering a period of nearly three years, and when the issues had been specially set for trial on a particular day, the attorney for the caveator filed in the clerk's office toe order to dismiss, and at once, and before the will could be again presented to the orphans' court for probate, he gave notice to that court of his intention to file another caveat, and admitted to the caveatee's attorney that he intended to ask for issues on the new caveat to be sent to a court of law. By that time the administration of the estate had already been prevented for fully three years from the offer of the will for probate. It appears from the record that in the meantime the creditors of the testator had filed a bill in equity for the sale of his real estate for the payment of his debts, and receivers had been appointed in that suit who were in charge of the property. In these circumstances, as the caveator had not under the decisions of this court au absolute right to dismiss the issues, the court below should have granted the appellant's motion ne recipiatur and stricken out the entry of dismissal made by the clerk on the caveator's order, and required the case to proceed to trial in due course. If the appellee were accorded the right to dismiss at will, the issues on his caveat after they

had been in the court of law for nearly two years and at the same moment file another caveat he might by a capricious exercise of that right indefinitely postpone the administration of the estate to the great inconvenience and injury of other persons interested therein who would be without remedy. Such persons, not being parties to the proceedings. would not be entitled to costs against the appellee, and would not even receive that compensation which, though often meager in fact, has in a legal sense been held to be adequate for the inconvenience of double litigation.

At the hearing in this court the appellee insisted that under the sixteenth rule of the court of common pleas, which provides that the court will not hear any motion grounded on facts unless the facts are apparent from the record or verified by oath or agreed upon by the parties, the appellant was not entitled to have her motion ne recipiatur considered. The answer to that objection is twofold. In the first place, a copy of the rule does not appear in the record; and, in the second place, in passing upon the motion we have considered only facts appearing from the record or the written agreement of the parties found therein, without reference to the reasons de hors the record set forth in the motion.

For the reasons stated in this opinion, the order appealed from must be reversed and the case remanded for further proceedings in accordance with this opinion.

Order reversed, with costs, and case remanded for further proceedings.

(106 Md. 132) LOVETT v. CALVERT MORTGAGE & DEPOSIT CO. OF BALTIMORE CITY. (Court of Appeals of Maryland. May 15, 1907.) 1. USURY-EVIDENCE-SUFFICIENCY.

Evidence held to show that the sum sued for was usurious interest paid upon a mortgage loan, which loan had not been renewed, but wholly paid, and that a release thereof had been asked for and received.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Usury, § 329.] 2. SAME TIME TO SUE.

Code Pub. Gen. Laws 1904, art. 49, § 3. provides that if any person shall exact for a loan money above the value of $6 for the forbearance of $100 for one year, he shall be deemed guilty of usury. Section 6 provides that nothing in the preceding sections shall be so construed as to make usury a cause of action in any case where the bond, etc., or other evidence of indebtedness has been redeemed by the obligor, except that of a renewal in whole or in part of the original indebtedness. Held. that where a mortgage loan had been fully paid, and a release given, a recovery could not thereafter be had for usurious interest paid on the loan.

Appeal from Superior Court of Baltimore City; Alfred S. Niles, Judge.

Action by William Lovett against the Calvert Mortgage & Deposit Company of Baltimore City to recover usurious interest paid.

requesting it to send a check for $221.25 without delay; that he was assisted by his counsel, Mr. Baker, in counting up his book that evening; that he never received any answer to that letter, but that a release of the mortgage was sent to him under the seal of the company, and after he got the release he wrote and mailed a second letter to defendant, dated January 10, 1905, a copy of which was admitted in evidence, in which he said the release of mortgage would not be accepted until the matter was finally settled; that he had ordered the release sent back, and would have nothing to do with it until defendant gave back what it honestly owed him. He said he did not know what became of the release, but did not say he had returned it. He admitted that he was trying to recover the amount he had paid over $500 and 6 per cent. interest thereon, and that he had waited so long to sue because he had broken his leg in May, 1905, and was laid up for six months, but could not say why he did not sue before he broke his leg. The defendant offered two prayers, as follows: “(1) That there was no evidence in this cause legally sufficient to prove any indebtedness from defendant to plaintiff, and that plaintiff was not entitled to recover. (2) That, under the pleadings and evidence in this case, the sum sued for by the plaintiff is usurious interest, in excess of 6 per cent. per annum, paid by him to the defendant upon a mortgage loan of $500 from defendant to plaintiff, which said loan has not been renewed in whole or in part, but wholly paid off and extinguished, and therefore the plaintiff is not entitled to recover." The court granted both these prayers, and the only exception is to that ruling.

These instructions are founded upon section 6 of article 49 of the Code of Public General Laws of 1904. Section 3 of that article provides that: "If any person shall exact, directly or indirectly, for loan of any money, goods or chattels to be paid in money, above the value of six dollars for the forbearance of $100 for one year, and so after that rate for a greater or lesser sum or for a longer or shorter time, he shall be deemed guilty of usury." Section 6 provides: "Nothing in the preceding sections shall be so construed as to make usury a cause of action in any case where the bond, bill obligatory, promissory note, bill of exchange, or other evidence of indebtedness has been redeemed or settled for by the obligor or obligors in money or other valuable consideration, except that of a renewal in whole or in part of the original indebtedness." Both the pleadings and the plaintiff's own testimony conclusively show that every fact stated in the defendant's second prayer is true, for there was no other evidence than that of the plaintiff himself, except the proof that there was no release of the mortgage upon the record, and if the defendant's prayers were improperly granted it could only be because of

the absence of such release. But the purpose and meaning of section 6 is free from any possible doubt or obscurity. Prior to its enactment by chapter 358, p. 601, of Acts 1876, it had been settled by the cases of Baugher v. Nelson, 9 Gill, 308, 52 Am. Dec. 694, and Scott v. Leary, 34 Md. 389, that in usurious transactions the parties are not regarded as in pari delicto, and that in this state a borrower could recover back, in an action for money had and received, usurious interest which he had paid. In German Building Association v. Newman, 50 Md. 62, in speaking of section 6 of article 49, Judge Bartol said: "The intent of the act of 1876 was to change the law in this respect, and to take away such right of action in cases in which the transaction has been closed and finally settled by the parties, and the debt has been paid and satisfied." In that case the loan was on mortgage, the principal debt with usurious interest had been paid and satisfied, and the plaintiff had applied for and had received a release of his mortgage, and afterwards sued to recover the usurious interest. The only question argued or considered in that case was the constitutionality of the act of 1876, and the court below held it unconstitutional, on the ground that the subject of the act was not described in its title. This court, however, held the title good and the act valid, and said: "As the settlement took place, and the money was paid after that act went into effect, its provisions afford a complete bar to the suit, unless for some reason the act should be held to be void and inoperative."

In the present case the whole contention of the defendant, in the language of his counsel's brief, is that "the transaction was not closed between the parties, because the mortgage still remains on the record unreleased; there having been no sufficient delivery of the release and no proof that a valid release was sent to the appellant's wife." The proof, however, is clear, from the plaintiff himself, that he asked for and received a release, which remained in his possession, though not produced at the trial, and the presumption is that it was a valid release. There is no evidence that he ever tendered its return. The defendant had neither the right nor the power to record it, and the plaintiff's failure or refusal to record it cannot affect the situation. It is difficult to conceive how the transaction could have been more effectually closed and finally settled by the parties than by the execution and delivery of the release of the mortgage in compliance with the request of the mortgagor.

It was argued by the appellee that, "even if no release had ever been executed, the law would be the same. If the debt were paid in full, the usurious interest can never be recovered back," and there are expressions in some of the cases which may, perhaps, admit of this argument. In Woods v. Matchett, 47 Md. 395, where it was held that a party

Baltimore county, which was annexed to the city under Acts 1888, p. 113, c. 98. The question immediately before us is this: Has the appeal tax court of Baltimore city the power and authority under the provisions of the acts of 1888 and 1902 to take property situate in the Annex, and which has become subject to taxation at the full city rate, out of the list of the 60-cent rate, and to list or classify it at what is called the full city rate? The answer to this question must be found in the construction to be placed upon section 19, Acts 1888, p. 127, c. 98, as amended by Acts 1902, p. 199, c. 130, and upon certain sections of the Baltimore city charter conferring powers on the appeal tax court of Baltimore city. By section 19 of the act of 1888 it is provided, in part, that from and after the year 1900 the property, real and personal, in the Annex shall be liable to taxation and assessment in the same manner and form as similar property within the present limits of the city may be liable, provided that after the year 1900 the present Baltimore county rate of taxation shall not be increased for city purposes on any landed property within the territory, until avenues, streets, or alleys shall have been opened and constructed through the same, nor until there shall be upon every block of ground so to be formed at least six dwellings or storehouses ready for occupation. Acts 1902, p. 199, c. 130, subsequently passed, declared what should be considered "landed property" within the terms of section 19 of the act of 1888. In this case the bill does not allege that the property has not reached that stage of development which is required by the statute to subject it to the full city rate for the year 1907, so under the pleadings, and for the purposes of this case, it must be assumed that the condition of the property in controversy is such as to meet the requirements of the act, and to subject it to the full city rate. And this brings us to the vital question in the case, and that is: Has the appeal tax court of Baltimore city the power to list or classify such property, situate in the Annex, so as it will be subject to the tax rate which the Legislature manifestly intended it should be?

There can be no doubt, it seems to us, that the action of the appeal tax court in this case was entirely legal and within their delegated powers. The Legislature has defined the class of Annex property which shall be liable to the full city rate, and, when it reaches the standard of development required by the statute, it becomes the duty of the appeal tax court to so list, classify, or adjust the property upon the taxbooks in order that it may be liable to the proper tax. In other words, the Legislature has said that the property in the Annex should Le exempt from the payment of taxes at the full city rate for a definite period, but after the year 1900, and when it has attained a certain stage of development, it should be

taxed at the full city rate. When, therefore, property in the Annex reaches the prescribed development, it falls within the class of property the Legislature clearly meant should pay the city rate. The statute fixes the standard and the class of property, and, this being so, the appeal tax court has the undoubted right and power, under the broad powers conferred upon it by the city charter, to transfer, list, and classify the property on its books so as it will pay the correct tax. Acts 1898, pp. 244, 292, 329, 332, 333, c. 123, §§ 6, 40, 147, 157, 161. The right and power of the appeal tax court to list and classify Annex property has been upheld by a number of cases decided by this court.

In Balto. City v. Poole & Son, 97 Md. 67, 54 Atl. 681, this court said: "When, therefore, the appeal tax court may be informed, or have reason to believe, that any property within the territory annexed under the act of 1888 has been brought within those conditions of the annexation act which will warrant the imposition of the regular city rate of taxation, they should give a reasonable notice to the owner of their purpose to impose this rate, fixing a time and place when he can be heard in relation to the matter. We have not been advised of, and have not discovered, any specific provision of law, prescribing how, and by what authority, property in the annexed territory, which has been brought within the conditions of the act of 1888, warranting the imposition of the city rate of taxation, is to be put into that category upon the books of the appeal tax court, but it would seem, in the absence of such specific provision, that that court should have power to make such classification. The correctness of such classification, however, is a question of fact dependent upon proof as to the opening of avenues, streets, and alleys through the property, and the erection of the prescribed number of houses upon a block as provided in the annexation act, and, if no tribunal has been provided for the determination of that question, it follows that relief against such erroneous classification can be had only through the restraining power of a court of equity; and the exercise of that power in cases involving the question of the rate of taxation under the annexation act was sustained in Sindall's Case, 93 Md. 526, 49 Atl. 645, Goebel's Case, 93 Md. 749, 49 Atl. 649, and Kuenzel's Case, 93 Md. 750, 49 Atl. 649, where the injunction was denied only because the amount involved was not sufficient to give a court of equity jurisdiction." Poole's Case was cited and approved in the later case of Joesting v. Baltimore City, 97 Md. 597, 55 Atl. 456, and there is nothing in that decision in conflict with what was said Poole's Case, supra, or in the previous cases on this subject.

To sustain the appellees' contention in this case would practically defeat and annul the clearly expressed intention of the Legislature