29 Md. 50 | Md. | 1868
Lead Opinion
delivered the opinion of the court :
The questions to be decided on this appeal arise upon the demurrer to the first count of the declaration. One difficulty we have had in deciding the case has grown, out of the ambiguity in the averments of the declaration, and the consequent difficulty in placing upon them a correct construction.
The demurrer in assigning special ground of objection, treats the cause of action assigned in the nar., as if it were simply the failure and neglect of the defendant to have the assignment of the mortgage recorded. If that were the only cause
It was altogether a voluntary act with the defendant to place the deed of assignment on record, or refrain from doing so at his discretion ; the consequences of his failure or omission in that respect would fall upon himself. If the plaintiff had an interest in having the deed recorded, he might have secured himself by taking a covenant or promise from the defendant to place the instrument upon record ; but in the absence of any such covenant or promise, no right of action *accrued to him on account of the omission of the defendant in that respect.
It appears, however, that another cause of action stated in the nar. is the failure and neglect of the defendant to pay the rent and taxes which accrued and became due under the covenants in the lease, after the making of the assignment. And the object of the suit is to recover the amount of such rent and taxes, which the plaintiff was compelled to pay. The right to maintain the action for this cause depends upon the solution of the question whether upon the facts averred, the legal obligation to pay them was cast upon the defendant, and this leads us to the inquiry whether assuming the averments in the declaration to be true, the legal estate in the term ever passed to the defendant. By the decisions of this court in Hintze v. Thomas, 7 Md. 346, and Mayhew v. Hardesty, 8 Md. 479, it has been settled that the legal obligations upon such covenants in a lease run with the land, and bind the party holding the legal estate.
Under the provisions of the Act of 1856, ch. 154; which was in force at the time of the alleged assignment in this case, such an instrument was declared to be invalid for Ihe purpose of passing title either between the parties thereto or third persons, unless acknowledged and recorded as therein directed. Secs. 97, 102, in, 114. The Act, by secs. 11.6, 177, provides for an assignment of a mortgage to be endorsed on the original mortgage, and gives it validity without requiring it to be recorded. But where the assignment is made, as in this case, by a separate
Judgment affirmed.
Dissenting Opinion
delivered the following dissenting opinion :
Under our system of pleading, no special demurrer being permitted in any civil suit, the demurrer filed in this case must be treated as a general one; which, conceding the truth of all the material averments, in the first count of the declaration, the second having been withdrawn, presents the question, whether they make out a sufficient cause of action. The recital of the fact that the defendant did not record the deed of assignment, for the space of seven years, seems to have been relied upon by the plaintiff in the said count as a valid cause of action, per se, and is treated accordingly by the specification in the demurrer ^of the defendant. But • all the averments in their entire bearing and legal competency to enable the plaintiff to
*The substantial ground of complaint to be deduced from the transaction between the parties as detailed in the entire count, 1 take to be the alleged neglect of the defendant to pay the rents and taxes, which it alleges he ought to have paid, but which the plaintiff was compelled to pay by reason of his neglect. If these rents and taxes had been paid by the defendant, whether the deed was recorded or not, the plaintiff would have had no cause of complaint. If the deed of assignment had been recorded in due time, the privity of estate existing between the lessor and the plaintiff would have been determined between them, and the defendant, as assignee, whilst he held the term, would have been liable for the payment of the rents and taxes to the lessor under the real covenants in the lease and not the plaintiff. Hintze v. Thomas, 7 Md. 346; Mayhew v. Hardesty, 8 Md. 479. The deed of assignment from Lester to Hardesty, although not recorded for seven years, during which the rents and taxes accrued, yet, when it was recorded, as between these parties, passed the title as if recorded in the time prescribed. Code, Art. 24, sec. 19.
Under our registry laws, then and now existing, although a mortgage is required to be recorded, it was not necessary that the assignment of a mortgage should be, when made, in the mode prescribed, by endorsement on the original. When the assignment is made by an independent instrument, as stated in this instance, recording is necessary to give it full effect. From the nature of the transaction between the parties, the deed from Lester, when delivered to Hardesty, ought in good faith, to have been placed by Hardesty in proper custody for record, according to the requirements of the law. Omitting to do so, he failed in the performance of his duty to Lester, and became answerable for any damage consequent upon such neglect. If no one but himself was interested in the recording of the deed, and he alone was to suffer loss by his neglect in this regard, he might have been permitted to indulge'his own will. According to my apprehension of the ^dealings between the parties, it was clearly incumbent on Hardesty, in order, bona fide, to carry out the contract, to have had this deed recorded in the
In addition to this, the deed having been recorded before the institution of this suit, Hardesty was legally bound to pay the rents and taxes complained of, which bad accrued after the assignment to him, and so long as he held the term, and they may be recovered by the plaintiff in this action by proper proofs, under the first or second count of the declaration.
The incidental statement in the nar., as to the time when the deed was recorded is a mere recital, and not a distinct averment; but from its tenor and purport, the deduction maj'- be fairly made, that it was recorded before the commencement of this suit.
If, in fact, it had not been recorded, the defendant could have made that defense by suitable plea. Whether the plaintiff might have been able to support the allegations of his nar., by competent and admissible proof, if denied by the defendant under a different state of the pleadings, is not for this court to determine.
The second count, by agreement of the parties, was withdrawn, with leave to .reinstate it, in the event of the case being . sent back from this court.
The Code, Art. 5, sec. 16, by'its general and comprehensivé terms, has removed all doubts existing under antecedent legislation, as to the power of this court to send back cases for new trial, upon affirmance or reversal of the judgment below. The Acts of 1790, ch. 42,1826, ch. 200, and 1830, ch. 186, manifested a clear legislative design, to give to the appellate court more extended control over cases brought up on appeal, in order to advance the great ends of justice. This authority has been still further enlarged by the provision of the Code, adverted to, so as to embrace all cases where it shall appear to the court, that a *new trial below should be had. The absolute affirmance of the judgment below in this case, denies any opportunity to the plaintiff to recover what appears from the record, according to my judgment, to be a meritorious claim ; and permits the defendant to evade a proper responsibility.
Armed, as this court has been by the law, with the amplest powers to advance the purposes of justice, it seems to me, the judgment of the court below ought to be reversed ; and under the circumstances of this case, in any event, it should be sent back under a procedendo for a new trial.
