
    Julianna Williamson, and others, vs. The Mayor and City Council of Baltimore.
    The Mayor and City Council of Baltimore, holding a certain lot of ground in said city, on a special trust created by deed, “as a place for the sepulture or burial for the poor and strangers dying within the city,” filed a bill against the heirs at law of the grantor, then deceased, for a sale thereof, with a view of applying the proceeds to the purchase of a larger lot, to be used for a like purpose. The heirs at law, in their answers, objecting to the sale, and claiming the whole, on the ground that the lot being no longer used for the purposes of the trust, reverted to them, the parties agreed, by way of compromise, that the lot should be decreed to be sold, “one-half the net sales to be paid to the complainants, and one-half the net sales to be divided amongst tbe representatives of the grantor.” Held:
    1st. That in the absence of all reference in the agreement to any lien or incumbrance, the term “met sales” will be taken to mean the proceeds of sale, after deducting the usual costs, commissions and expenses incident to a sale.
    2nd. That the Mayor and City Council having, during such holding, paid a paving tax imposed upon the property held in its corporate capacity, the lien of the tax no longer existed; or if the same had remained unpaid, they parted with their right to retain on that account, when to obtain the decree for a sale, they agreed to divide the net proceeds of sale.
    Appeal from the Equity Side of tbe Superior Court of Raltimore city.
    Tbe bill in tbis case was filed on tbe 16tb of September 1850, by tbe appellees against tbe appellant, in tbe late .Baltimore County Court, as a Court of Equity, and after-wards transferred to the Equity Side of tbe Superior Court ■of Baltimore city. Tbe proceedings in tbe cause, as well us tbe arguments of tbe counsel on both sides, are set forth in' tbe opinion of tbis Court.
    Tbe cause was argued before Bowie, C. J., and Bartol, G-oldsborough and Cochran, J.
    
      T. Parhin Scott, for tbe appellant.
    
      John L. Thomas, Jr., for tbe appellee.
   Bowie, C. J.,

delivered tbe opinion of tbis Court:

David Williamson, by bis deed dated tbe 12th of June 1194, conveyed unto John Townsend and others a certain lot in tbe city of Baltimore, in trust for tbe sepulture and burial of tbe poor and strangers dying within tbe city.

No provision being made in tbe deed for tbe appointment of successors for tbe continuance of tbe trusts, tbe grantor and grantees, by deed dated 12th December 1198, conveyed tbe said lot to tbe Mayor and City Council, “to have and to bold tbe land and premises unto tbe Mayor and City Council and their successors forever, as a place for tbe sepulture and burial of poor persons and strangers dying in tbe city of Baltimore, and to and for no other use, intent or purpose.”

Tbe appellees filed their bill on tbe 16th September 1850, in tbe Superior Court, as a Court of Equity, setting forth the above facts, and alleging that they had faith fully Continued to perform the trust, until the rapid increase of the city around the premises, rendered it inexpedient; that wishing to perpetuate the benevolent object of the first conveyance, they have purchased a more spacious lot of ground situate beyond the limits of the city. They prayed that the appellants might be summoned to answer, and' that the “Potters Field” might ho sold under a decree of the Court.

The appellants, by their answer, admitted that the ground and premises referred to in the bill, were conveyed for tbe purposes charged, but insisted that whenever it ceased to he used for that purpose, it became forfeited to the heirs and representatives of the grantor.

On the 9th of June 1858, the parties, by their counsel,, entered into the following agreement:

“It is agreed that a decree shall pass for a sale of the° property, Grafton L. Dulany and T. Parkin Scott to he the-trustees; one-lialf of the net sales to he paid to the complainants, and one-half the net sales to he divided amongst' the representatives of David "Williamson, senior,.deceased. Terms of sale, one-third cash, and the balance in. six and twelve months, with interest and security.”

Upon this agreement a decree for .the sale of the lands was passed, and the trustees required to bring into Court the proceeds, to be distributed under its order, after deducting commission and costs.

The sale being made, the auditor stated an account, distributing the proceeds, equally between the city and the representatives of Williamson, hut charging the city with-the amount of paving tax. The appellees excepted to the-auditor’s account; the Court below sustained their, exceptions, and ordered the auditor to state another account, charging the whole fund with the amount of the paving' tax, and dividing the balance between, appellants and appellees equally. From which order this appeal is taken.

At the hearing of the exceptions below, it was admitted . that application was made by property -holders (of which the Mayor and City Council was not one) binding’ on Orleans street, in 1857, for the paving of that street, and that it was accordingly paved during that year; but that no application was made by the defendants, or either of them, nor was their assent thereto asked or given; also, that the city used the property for other purposes than a burial ground, without the consent and without objection of the defendants.

The appellants contend the auditor’s report was based upon the true interpretation of the agreement; according to which, having purchased their peace by surrendering their claim to one-half the net proceeds, they were entitled to the other, without deduction; that the paving tax Was incurred whilst the city Was in exclusive possession of the property, Using it for other purposes than that mentioned in the deed; that the agreement of the 9th of June 1858, was a compromise of a disputed claim; that the paving tax was for Work done by the city before the compromise, and the agreement contemplated an equal division of the proceeds of the property,- as it was at the date of the agreement.

The appellees insist the paving tax was a lien on the property, which being sold for the benefit of both, each should bear an eqiral portion of the burthen of the tax; that the true construction of the agreement would include liens as well as expenses; that the tax was not incurred by the city, but imposed on the application of a majority of the property holders; and that the improvement enhanced the value of the property sold, and enured to the benefit of appellants -as well as appellees.

In construing written instruments, the first and chief object is, to ascertain the meaning of the parties and tlio intention as expressed, unless contravening some rule of laiv, is to be carried into effect. Benson vs. Boteler, 2 Gill, 74. Jones vs. Plater, 2 Gill, 125. A consideration of the relative position of the parties and the subject of the agreement, will perhaps enable us to arrive at the correct construction of its terms. The appellees held the land upon a special trust; they desired to sell it, and apply its proceeds to the same or some other use. To do this, it was necessary to make the appellants parties, and obtain their consent, or obtain a decree against their consent. They refused, and set up their claim to the whole. Their position, if tenable, was an insuperable obstacle to the appellee’s prayer for relief. To avoid the risks of further litigation, the jiossihility of losing the whole, the parties agree the lands in controversy shall be sold, their respective solicitors appointed trustees, and one-half the net sales paid to the appellees, and one-half divided amongst (he representatives of David "Williamson, tlio appellants. “Ret” is a relative term, depending for its force upon the context. There was no reference here to any lien or incumbrance existing on the property. The only idea conveyed by the term, in connection with sale, and in the absence of all other subjects, is that of the usual costs, commission and expenses incident to a salo.

The city, although not an actor in imposing the paving tax, but merely the agent of the property holders, was acting in this instance for itself, as property holder, and having paid the tax against property held in its corporate capacity, the lien no longer existed, or if it was unpaid, the Mayor and City Council parted with their right to retain on that account, when, to obtain the decree for sale, they agreed to divide the net proceeds. "Upon any other interpretation, the appellants were giving up their rights without any apparent equivalent. For if this lien could come in under the agreement, any other unascertained claim would, which might absorb the whole fund.

(Decided February 5th, 1863.)

There is something definite and tangible, as well as equal, in the appellants' construction, but no mutuality or certainty in the converse. We think there was error in the order of the Court below, sustaining the exceptions of the appellees, find directing the auditor to state another account, charging the whole fund with the amount of the paving tax, and the same should be reversed, and the original audit ratified and confirmed. This cause is therefore remanded, for such other order or proceedings as may be necessary to conform with this opinion.

Cause remanded.  