deeds for the same were executed in Sep- Reid v. Brewing Co., 88 Md. 236, 40 Atl. tember, 1889, and delivered to the purchaser | 877; Association v. Robinson, 90 Md. 618, before the 1st day of January, 1890, but were not recorded until June, 1890. Suit was brought against the executrix in February, 1890, after the deeds were delivered, but before they were recorded. The leading question was whether the executrix was liable for the rents and taxes that were in arrear when the suit was brought. It was held the action would lie, although she had sold her entire interest to a third party; that when the periods arrived for the payment of the rent the party holding the legal title must pay them; and that, when his title was by assignment, such "assignment continued in full force and effect until he put some one in his place possessed of the leasehold legal title." "There can be no hiatus in the tenancy. There can be no abeyance of the legal title to the leasehold." "The mode by which the legal title must be conveyed is distinctly provided in the twentyfirst article of the Code of Public General Laws." The facts of that case, as I have said, were very similar in many respects to those now before us. The leasehold interest was sold by order of the court. Mrs. Scott, the purchaser, paid the purchase money and received a deed on or before the 1st day of January, 1890, which, however, was not recorded until July following. The rents sued for accrued on the 1st of July, 1889, and the 1st day of January, 1890, and suit was brought in February, 1890. Certainly this was as strong a case as the one at bar. But the court held that the suit was properly brought, upon the ground that, at the time the rent accrued, Nickel was the holder of the legal estate, though before the action was brought the estate had been sold, and the deed therefor had been executed and delivered. It was held that, by reason of the failure to record the deed, the legal title had not passed. The court, further along in its opinion, said: "The deed to Mrs. Scott was recorded in June, 1890. At that time, and not earlier, the liability of the former assignee, her grantor, ceased to exist." The liability of the assignee of the term to the lessor is founded upon the privity of estate, and not upon any privity of contract. During the continuance of that privity such assignee is liable upon all covenants that run with the land. It cannot be avoided, as long as such privity exists, by any outstanding equities between himself and third parties. Being a result attributable to his position as the holder of the legal estate, it is immaterial whether he is possessed of the premises or not; and it is clear, as a corollary of the proposition, that he can be held for breaches of the real covenants occurring during the continuance of the privity in an action at law which is instituted before, and not after, he has devested himself of the estate. Mayhew v. Hardesty, 8 Md. 494; Ice Co. v. Bixler, 84 Md. 446, 35 Atl. 1086; 45 Atl. 449. If, therefore, this case was one in which there was no question of an assignment by Mrs. Peat, and the city had paid the rent which accrued during the continuance of her tenancy, clearly she would be under an obligation to indemnify it for its outlay. This principle is established by the cases of Burnett v. Lynch, 5 Barn. & C. 589; Moule v. Garrett, L. R. 5 Exch. 132, L. R. 7 Exch. 101, referred to in Brinkley v. Hambleton, 67 Md. 177, 8 Atl. 904. That Mrs. Peat was the holder of the legal title at the time the rent accrued, and when this action was instituted, I think, is clear, under the rulings in the case of Nickel v. Brown, supra, and it seems to me impossible to affirm the judgment in this case without overruling the doctrine laid down in that. The opinion of the court is based upon the idea that by the sale by the trustee the "substantial title to the term" was devested out of Mrs. Peat, the appellee, and vested in the purchasers, as of the day of sale, and that thereby the privity of estate between her and the lessor was destroyed. While it must be admitted that the ratification of a trustee's sale retroacts, and the purchaser is regarded, by relation, as the owner from the period of the sale, as was said in Wagner v. Cohen, 6 Gill, 102, 45 Am. Dec. 660, yet this statement of the law does not affirm, and I think the court did not mean there to lay down the doctrine, that by the ratification of the sale the legal title was devested from the former owner and vested in the purchaser. As I shall attempt to show further on, none of the cases cited to maintain that position go so far. Certain it is that this court has more than once laid down a different principle. For instance, in Sanders v. McDonald, 63 Md. 508, in referring to a case where the purchase money had been paid and the sale finally ratified, but no deed was made by the trustee, the court said, "The effect of the sale and the payment of the purchase money would be only to invest the purchaser with the mere equitable estate in the premises sold, and not the legal title." It may be questioned whether the court has ever gone further in stating the character of the interest of a purchaser at a trustee's sale, before the execution of a deed, than to hold that such equitable title is available for defending his right of possession in cases where the right of possession is an essential fact in determining the rights of the parties to the action. This is the character of the cases cited in the opinion to sustain the position that there is in such circumstances a change in the legal title. Without citing from all the cases referred to in the opinion, I think it sufficient to quote from the case of Lannay v. Wilson, 30 Md. 550, as showing most lucidly the correct doctrine on the subject. That was an action of ejectment, and the defendants had received no deed from the ties have intervened, it cannot destroy these rights. The deed will undoubtedly enable the grantee to protect his title to and interests in the property, and it does this by clothing him with a legal title from the day of sale. But how can it affect the rights of third persons, so as to take away a right of action? I cannot perceive, therefore, that the deed of the trustee can operate to devest any right of the appellant which was complete when the suit was brought. Nor can the fact that, under the circumstances of this case, the purchaser of the term ought to indemnify the appellant for what she might have to pay on account of rents accruing after the sale, affect the case. Her obligation grows entirely out of the privity of estate. It is her position relatively to the property that raises her liability, and is not founded upon equitable considerations. A person about to make sale of a term may protect himself by seeing to it that the deed conveying it shall be duly executed, delivered, and recorded; but, if she do not, she takes the risk of being liable for the rents until the legal title is invested in the purchaser. The present action is an equitable action, but the defendant's equity is not to get rid of a legal liability. Whatever equity she has is not against the city, which has paid money for which she was liable; but, if she have any, it is against the purchasers, who have not paid the rents which accrued after their purchase. trustee. It was claimed that because of the absence of a deed the defendants had no title, and therefore the plaintiff, under other facts in the case, could recover. The court said: "A sale by a trustee appointed by a decree for the purpose is a judicial sale, and binds and concludes all the parties to the cause who may have the right or claim; and the court passing the decree had ample power to make its jurisdiction effectual by putting the purchaser in possession of the premises sold by its authority. And, though the de cree does not operate as a conveyance of the legal title, the purchaser holding possession under it does not hold wrongfully or unlawfully, and consequently all right of possession of those bound by the decree and the proceedings under it, other than the purchaser, is devested and taken away, and of course with it the right to maintain ejectment. By such title the dry legal title and the right of possession often become completely severed, at least for a time; the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser." So that, even if it be conceded, as it must be, that by the sale of the trustee the equitable title and the right of possession passed out of Mrs. Peat into the purchaser, yet the legal title remained in her, and therefore the obligation of Mrs. Peat to indemnify the city still remained, until some one else was put in her "place, possessed of the leasehold by legal title." Nickel v. Brown, supra. It does not seem to me decisive of the case that after the rent had accrued, and after this proceeding was instituted, and the liability of Mrs. Peat had become fixed, the trustees made and executed a deed to Brannan and Peat. The right of the city to collect the rents from Mrs. Peat was complete when the suit was brought. The rent had accrued and become due during the period when the legal (Court of Appeals of Maryland. Dec. 5, 1901.) title was in her, and the suit was brought before she had been devested of the title. Why should the deed devest the city of its right of action? Does the case in 4 Gill, 115, 45 Am. Dec. 117 (Hunter v. Hatton), warrant such a conclusion? That was an action of trespass q. c. f., in which the issue was as to the right of possession at the time of the commission of the acts complained of by the plaintiff. The plea of liberum tenementum was interposed, the effect of which was to admit a colorable possession in the plaintiff, but to deny a rightful possession, because the freehold was in the defendant, with right of immediate possession. Thus was raised the issue which enabled the defendant to show that by operation of law the freehold was in the plaintiff. The deed of the trustee was therefore admissible, because, upon the principle of relation, it operated retrospectively. But it is obvious, as it seems to me, that the relation itself does not occur until the deed has been executed and delivered, and, if in the meantime rights of third par Without discussing them, I will add that I think there was no error in the rulings upon the other questions involved in the appeal. I am of the opinion that the judgment should have been affirmed. FOX v. STATE, (94 Md. 143) CRIMINAL LAW-INDICTMENT-OLEOMAR GARINE-SALE-FRAUDULENT. Under Code, art. 27, § 90, providing that any person who sells oleomargarine to a person who asks for butter shall be guilty of a fraud, an indictment charging such offense need not allege that the oleomargarine was fraudulently sold. Appeal from criminal court of Baltimore city; J. Upshur Dennis, Judge. Michael J. Fox was convicted of selling oleomargarine to a person who asked for butter, and appeals. Affirmed. Argued before McSHERRY, C. J., and FOWLER, BOYD, PEARCE, JONES, and SCHMUCKER, JJ. T. C. Ruddell and Wm. C. Smith, for ap pellant. Isidor Rayner, Atty. Gen., and Robert M. McLane, for the State. FOWLER, J. The traverser was indicted under Acts 1900, c. 496, codified as sections 88 and 90 of article 27 of the Code (Supp. 18901900, pp. 33, 34). The indictment contains two counts, and, although the demurrer goes to the whole of it, and to each count thereof, yet no question is seriously made to the first count. It is conceded by the appellant that the first count "is perhaps properly framed." We see no objection to it, and, none having been pointed out, we conclude that, inasmuch as it follows the language of the statute creating the offense, it is free from objection. 1 Bish. Cr. Proc. (4th Ed.) § 612, etc.; Dickhaut v. State, 85 Md. 464, 37 Atl. 21, 36 L. R. A. 765, 60 Am. St. Rep. 332. But it is insisted that the second count is fatally defective. Section 90, art. 27, of the Code, on which this count is framed, provides that any person who, by himself cr his agents, or as the agent of any other person, sells or offers to any person who asks for butter any oleomargarine, with or without coloring matter, shall be guilty of a fraud. The contention is that the indictment should have alleged, but did not so allege, that oleomargarine was "unlawfully and fraudulently" sold. The indictment alleges that the traverser did unlawfully sell, etc., but there is no allegation that the sale was fraudulent as well as unlawful. With out the allegation of fraud, there can, the traverser contends, be no conviction, and that the indictment is fatally defective. This view is based upon the proposition that the statute prohibits only a fraudulent sale, but, in our view, it bears no such construction. The plain language is that whoever sells contrary to the prohibition of the statute shall be guilty of a fraud, and shall be fined $100 for the first offense, and imprisoned three months for each subsequent offense. Hence, whether the dealer knowingly, willfully, and fraudulently sells oleomargarine to one who asks for butter, or makes such sale in ignorance of the fact whether the substance he sells is oleo, butterine, or pure butter, is altogether immate rial. Such a sale the statute pronounces a misdemeanor. In a word, the statute does not provide that whoever fraudulently sells, etc., shall be punished, but whoever sells (without the use of any qualifying adjective whatever) shall be guilty of a fraud. We do not understand, therefore, why we should interpolate the word "fraudulently" into the statute when the legislature has omitted it. But it is insisted that by the settled rules of pleading the indictment must allege that the sale was fraudulent, or made with intent to defraud, etc. The rule, however, in regard to statutory crimes, like the one we are dealing with here, is that only where the technical words such as "fraudulently," "willfully," "knowingly," etc., are used as a part of the description of the offense, or as a descriptive element of the offense, are they necessary terms in the indictment. Whart. Cr. Pl. §§ 255, 269; Kearney v. State, 48 Md. 23; Davis v. State, 39 Md. 355; State v. Elborn, 27 Md. 483; Cearfoss v. State, 42 Md. 403; Mincher v. State, 66 Md. 227, 7 Atl. 451; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522; Carroll v. State, 63 Md. 551, 3 Atl. 29. In the case last cited it was held that, when a licensed dealer in spirituous liquors was indicted for unlawfully selling liquor to a minor, he cannot escape the penalty of the offense by proving that the sale was made by his agent during his absence, without his knowledge, and contrary to his instructions given in good faith. The provisions of the Code we are now considering are, as was the law construed in Carroll v. State, supra, police regulations. "For the violation of a statute of this nature," we said in that case, "it is not necessary to allege the scienter in the indictment, because it is not made an ingredient, by the statute, that the thing shall be knowingly and willfully done, to make the violation of the statute an offense. As ignorance of the existence of such a law will not excuse, so also ignorance of a fact necessary to be known to avoid a violation of the law will not excuse." See, also, 3 Greenl. Ev. § 21, note "a." We think the question is too clear for further discussion. The judgment appealed from must be affirmed. Judgment affirmed, with costs. WHITBY V. JUMP. (94 Md. 185) (Court of Appeals of Maryland. Dec. 5, 1901.) WILLS-CONSTRUCTION-LIFE ESTATE-FEE. Testator devised his estate to his wife and youngest son during their lives, to be equally divided between them. In case his wife survived his son, and the latter died without children, the property should go to certain designated persons, but, if such son survived testator's wife, what remained of the property devised to her should go to him, and if he died without childdren the whole should go to the persons designated to take if he died before the wife. The son survived his mother, and died leaving a child. Held, that the son took a fee in one half the estate on the death of his father, and on the death of his mother the fee in the other half, subject to defeat in the event of his dying without a child. Appeal from circuit court, Talbot county; Jas. A. Pearce, Judge. Action by Louis Edgar Whitby against Mary A. Jump. From a judgment for de fendant, plaintiff appeals. Affirmed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, and SCHMUCKER, JJ. Oswald Tilghman and Alfred L. Tharp, for appellant. Seth & Wilson and Jas. C. Mullikin, for appellee. BRISCOE, J. This is an action of ejectment, brought in the circuit court for Talbot county by the appellant to recover possession of certain real property, situate and lying in Chapel district, of that county. The case was tried before the court upon the plea of not guilty and upon an agreed statement of facts. The title to the property in question rests upon the construction to be placed upon the will of Thomas Whitby, late of Talbot county. The following is the clause of the will out of which this controversy has arisen: "I give and bequeath all the rest and residue of my estate, both real estate and personal, to my beloved wife, Catherine Whitby, and my youngest son, William Elbert Whitby, during their natural lives, to be equally divided between them. In case my wife, Catherine Whitby, survives my son William Elbert, and my said son William Elbert should die without children, my will is that the property above bequeathed to my said son shall, in that event, be equally divided among the children of my daughter Jane Warner and the children of my deceased daughter, Mary Greenhawk, to be and remain theirs, forever. And in case of my son William Elbert survives my wife, my will is that whatever remains of the property above bequeathed to her during her life shall then descend to my said son William Elbert, and in case of his death without children the whole to be equally di vided among the children of my daughter Jane Warner and the children of my deceased daughter, Mary Greenhawk, share and share alike." The plaintiff, who claims as one of the children of William E. Whitby, contends that the estate given by the will was a life estate only. The defendant, who claims the property by purchase through a regular line of conveyances, beginning with William E. Whitby, after the death of the testator, contends that William E. Whitby took a fee-simple estate in the whole property after the death of his mother, defeasible on his dying without children. The facts of the case, as disclosed by the record, and about which there is no dispute, appear to be these: Thomas Whitby, the testator, died in the year 1872, and Catherine, his wife, died in the same year, and William E., the father of the plaintiff, died in October, 1900, leaving eight children; that he was unmarried and without children at the time he executed the will and at the time of the father's death; that the daughters, Mrs. Warner and Mrs. Greenhawk, had children living at the time the testator made his will; and that the property in question is a part of the property of which Thomas Whitby died seised and possessed, and is a part of the rest and residue of the real estate devised by his will. The law applicable to this case, we think, was correctly stated by the court below in the second instruction granted on behalf of the defendant. It is as follows: That under the evidence in the case William E. Whitby took under the will of his father, Thomas, a fee-simple interest in the land in question on the death of his mother, Catherine Whitby, defeasible on the said William E. Whitby dying without children; and, if the said William died leaving children, then their verdict must be for the defendant. It is a cardinal rule in the construction of wills that such construction must be placed upon the provisions of a will as will give effect to the intention of the testator, consistent with the established principles of law. It is quite clear, we think, from an examination of the will now before us, that William Elbert Whitby was the chief object, after providing for his wife, of the testator's bounty, and that the testator did not intend any of his other children to take anything more than what had been specifically devised, except in the contingency that William should die without children; and even · then the residue was to go to certain of his grandchildren. By the first clause of the sixth item of the testator's will he gave and bequeathed all the rest and residue of his estate, both real and personal, to his wife, Catherine, and to his youngest son, William Elbert, during their natural lives, to be equally divided between them. If the testator had stopped here, there would be no question as to the estate devised by the will. But by the subsequent clause of the same item of the will it clearly appears that the testator enlarged the estate to a fee simple in one-half of the residue during his mother's life and in the whole of the residue upon her death, if he survived her, subject to be devested upon his death without children. This is the proper construction to be placed upon the will, and gives effect to the plain and manifest intention of the testator, and is sustained by the adjudged cases. Dickson v. Satterfield, 53 Md. 318; Backus v. Association, 77 Md. 57, 25 Atl. 856; Devecmon v. Shaw, 70 Md. 221, 16 Atl. 645; Gambrill v. Forrest Grove Lodge, 66 Md. 26, 5 Atl. 548, 10 Atl. 595. In Fairfax v. Brown, 60 Md. 55, it is said: This being a general devise of the whole residue of the estate, without any words of limitation or perpetuity, the devisees will take the entire and absolute interest of the testator, unless it shall appear that the testator intended otherwise. Article 93, § 314, Code. If the appellant's contention is sustained, and we hold that William Elbert took only a life estate under the will, there would be an intestacy as to the whole residue of the estate upon his death without children, the contingency upon which alone there was any devise over-his death without children-not having happened; and the testator's children and grandchildren, who were intended to be excluded, would all participate in the residue of the estate. In Devecmon v. Shaw, 70 Md. 219, 16 Atl. 645, it is said: "Upon consideration of the whole context of the will, I can entertain no doubt of the opinion that the daughter was intended to take, and that she does by fair construction take, an estate in fee in the realty, and the entire interest in the personalty, defeasible as to both realty and personalty upon the happening of the contingencies specified. The daughter was, doubtless, the principal object of the testator's care and bounty, and we may suppose that it was his purpose to secure to the daughter and her children the full enjoyment of the property given to the daughter. He intended to dispose of his entire estate, and he never for a moment contemplated the possibility of a state of intestacy as to any part of his estate, or for any duration of time. But, if the daughter takes but a life estate, as contended, there would be an intestacy as to the reversion, subject to the happening of the contingencies mentioned; and if the daughter was to die leaving child or children, none of whom had attained the age of 21 years, the state of intestacy would continue, and the property would devolve upon the children as heirs at law and distributees, taking or claiming through the mother, subject to be devested upon the happening of the contingencies provided for in the will." For the reasons we have given, the judgment will be affirmed. Judgment affirmed, with costs. (94 Md. 171) HALL et al. v. POOLE. (Court of Appeals of Maryland. Dec. 5, 1901.) NEGLIGENCE - MASTER AND SERVANT -LIABILITY-EVIDENCE-VERDICT-DIRECTION. 1. Plaintiff, while at work in the cellar of defendants' building repairing their elevator, was injured by the elevator striking him. He had told the elevator boy not to come below the first floor until called. The boy was operating the elevator from the cellar to the top and intermediate floors, and had no authority to agree not to go to the cellar, or to permit any one to be under the elevator. Defendants had no knowledge that plaintiff was under the elevator, or of his directions to the boy. It was not necessary for plaintiff to stand under the elevator. Held, that defendant was not responsible for the injury caused by the elevator boy's disobedience of plaintiff's direction. 2. Where plaintiff was injured, while needlessly working under defendants' elevator, by the elevator boy disregarding his instruction not to come down until called, and the evidence is undisputed that the boy was employed solely to operate the elevator, with no other authority, a verdict should be directed for defendant. Appeal from superior court of Baltimore city; John J. Dobler, Judge. Action by Edwin L. Poole against Hall, Headington & Co. From a judgment for plaintiff, defendants appeal. Reversed. Argued before McSHERRY, C. J., and FOWLER, BOYD, and SCHMUCKER, JJ. William L. Marbury, George Weems Williams, and Carroll T. Bond, for appellants. Wm. J. O'Brien, Jr., and Tatlow Jackson, for appellee. FOWLER, J. Edwin L. Poole, the plaintiff below, sued Hall, Headington & Co. in the superior court of Baltimore city to recover damages for injuries sustained by him while repairing the electrical appliances used in connection with the signal bell in their elevator. The plaintiff recovered a judgment, and the defendants have appealed. During the trial several exceptions were taken to the admission of testimony, and at the conclusion of the evidence the plaintiff offered 8 and the defendants 14 prayers. A statement of facts will be necessary to present the one question which we think controls the case. The defendants, having learned that the bell in their elevator was out of order, sent a message to the firm of J. Frank Eline & Co., who were engaged in the business of general electrical installation and repairs, to send some one to repair the bells. In compliance with the request, the plaintiff was sent by Eline & Co. He had been in their employ for a number of years, and was paid by them for the work he did. It appears from his testimony that he was sent to make the repairs for the de fendants, and for that purpose entered the building occupied by them, and went directly to the elevator. When he arrived there, he proceeded to make the necessary investigation to ascertain where the trouble was located. Having examined the wires, he concluded that it would be necessary also to examine the batteries, which were placed in the cellar. He says: "I told him [the elevator boy] to carry me to the cellar, which he did, and I got out, and I told him: 'You go up. I am going underneath the elevator to do some repair work; but don't you come down until I call you.' And I went underneath the elevator, and renewed the batteries. * * * After renewing the batteries, I pressed the button, and I could hear the bell ring, but not so strong as it should be." He concluded after the experiment that he needed some new material to make the batteries stronger. He therefore told the elevator boy that he would go to the place of Eline & Co. to get what was necessary. When he returned, he entered the defendants' place of business from Fayette street, through a side door. He rang the elevator bell, and the boy came down with the car, and both descended in the elevator to the cellar. The plaintiff then said to the boy, "I have the stuff now to finish the work;' and I got off the elevator, and I told him: 'You go up now, but, mind you, don't come down until I call you. I am going under to finish this work.' Then he turned around to me, and says, 'Can I use the ele vator as far as the first floor?' I says: 'Yes; but mind, don't you come below the first floor. Don't you come below that,'-and he said, 'All right.'" After this conversation the plaintiff started to work on the batteries. While he was working, the elevator was running to one or more of the upper floors. While the plaintiff was engaged in this work in the shaft directly under the elevator, it struck him. The witness Brown, the elevator boy, testified that he was employed by the defendants to run the freight |