This suit was brought for the recovery by the appellee's decedent of certain installments of ground rent then due and unpaid, issuing out of a lot of land in Baltimore City on Pen Lucy avenue, under a renewable ninety-nine year lease, together with certain taxes chargeable against said property which had been paid by the appellee's decedent for the protection of his interest in said property. This lease was made June 29th, 1892, by Samuel C. Houlton, to Augustus D. *Page 400 Clemens, and reserved a yearly rent of ninety dollars, payable in two equal installments July 1st and January 1st in each year, and contained the usual covenants by the lessee, his personal representatives and assigns for the payment of the rent, and all taxes and assessments on the demised premises, when legally demandable. The reversion in this lot had become vested at the time of this suit, by mesne assignments in the appellee's decedent, and the leasehold, in like manner, sometime before the institution of this suit, had become vested in the appellant. When the suit was brought, there were due and unpaid three installments of rent amounting to $135, as also $60.22 taxes paid by the appellee's decedent for the protection of the reversion.
To the declaration of the plaintiff, the defendant pleaded that before any of the rent and taxes sued for had become due and demandable, "she jointly with her husband, Jacob G. Hartman, assigned to one James Moore, otherwise known as Louis F. Graffln, by deed duly executed, acknowledged, delivered and recorded, the said leasehold interest; and the said James Moore is the same person as Louis F. Grafflin; and the plaintiff long prior to the institution of this suit, was informed that said Grafflin was the same person as said Moore, and that he had accepted title to said property in the name of said Moore." The appellee filed a replication denying all the allegations of the plea, and on this, the issue was joined, the other matters alleged in the declaration being admitted by the pleadings. Zihlman v.Cumberland Glass Co., 74 Md. 307. The sole question in the case raised by the pleadings, is whether the effect of the alleged assignment to Louis F. Grafflin under the name of James Moore, was to vest the leasehold estate in said Grafflin. If it did, the liability of Mrs. Hartman, resting only in privity of estate, was at an end. If it did not, her liability continued, and upon this issue the burden of proof is upon the appellant. 1 Greenleaf onEvidence, sec. 74; 1 Jones on Evidence, sec. 176; FrederickInstitute v. Michael, 81 Md. 505. It is admitted by written agreement, that Mrs. Hartman, who lived in South Dakota at the time of the trial, would, if present, *Page 401 have testified that she placed this property in the hands of her husband, Jacob G. Hartman, for sale by him as her agent; that the deed of assignment mentioned in the plea was presented to her for execution, by her husband, and that she executed it, believing that the "James Moore named as grantee therein, was the true name of the actual purchaser." The deposition of her husband was offered in evidence, but was properly excluded, because the name of the witness was not inserted in the notice of the names of the witnesses proposed to be examined. Only two witnesses testified in the case, William E. Schloegel, one of the appellant's attorneys, called on her behalf, and Louis F. Grafflin, the alleged assignee of the leasehold estate, called on behalf of the appellee. At the close of the case, the plaintiff offered two prayers, the first requiring the jury to find all the facts necessary to warrant a recovery, if no assignment of the term had been set up, and then instructing them to find their verdict for plaintiff, for such rent and taxes as they should find to have been due and payable when suit was brought, unless they should further find that before suit was brought, the defendant had assigned the leasehold interest in said lot "by a good and sufficient conveyance thereof, in good faith divesting herself of all estate and interest in, and control over said lot of land." The second prayer instructed the jury that there was no evidence in the cause legally sufficient to show that the defendant had in good faith divested herself of all estate and interest in, and control over the said lot of land, and both these prayers were granted. The defendant offered two prayers both of which were rejected, and which will be set out by the Reporter. The defendant specially excepted to the plaintiff's first prayer because she alleged it submitted to the jury a question of law, viz., whether the defendant by a good and sufficient conveyance assigned the leasehold interest in the lot in question. This motion was overruled, to which the defendant excepted — as well as to the granting of the plaintiff's two prayers and the rejection of her own two prayers, and the verdict and judgment being against her she has appealed. Four *Page 402 exceptions were taken to the admission of testimony, which will be mentioned later.
The general principles applicable to the main question in this case are sufficiently established, and are not the subject of serious controversy between counsel. The difficulty lies only in dealing with the testimony. Mr. Washburn in his work on Real Estate, vol. 3, sec. 2116, (6th ed.) says, "The object of names being merely to distinguish one person from another, it seems to be sufficient if this is effected, though the true name of the party be not used, or even no name at all." In 1 Devlin onDeeds, sec. 191, it is said, "A patent issued to a person under an assumed name is not void, and a conveyance by such person under his assumed name will transfer title. But if issued to a person not in existence, the patent would be a nullity." This qualification is obviously a necessary one, because a grantee is as necessary to the conveyance of land as a grantor. In note d, to the case of Davis v. Hollinsworth, 84 Amer. St. Rep. 238 (Ga.) the editor Mr. Freeman, says: "Care must be taken to distinguish between a deed to a fictitious person who has no existence, and one to a person in existence, the conveyance being made to him by a fictitious name. If a person is in existence and ascertained, a conveyance to him by a fictitious name will pass title. In such a case, if the grantee is in existence and can be identified, it is immaterial by what name he may be called, and he may even assume a name for the occasion." In Thomas v.Wyatt, 31 Mo. 188, a patent was issued to Samuel Johnson, and in an ejectment suit by one claiming under a conveyance from Samuel Johnson, the proof being that Samuel Johnson was an assumed name of James Coleman, and not a fictitious person, the plaintiff was held to have good title.
In Blinn v. Chessman, 49 Minn. 140, it was held that one who accepts a conveyance in which his name is not correctly stated, is deemed to have adopted that name for the purpose of acquiring and holding title to the property. The Court said, "The name is not the person, and where one assumes, or comes to be known by, another name than that which he *Page 403 properly bears, that name may be effectually employed for the purpose of designating him."
The case of David v. Williamsburg Fire Ins. Co., 83 N.Y. 265, is an instructive discussion by JUDGE EARL of the principles involved. Henry David conveyed the insured premises to Marx David who was a fictitious person, and afterwards Henry David, in the name of Marx David, conveyed them to Henry's wife, Caroline David. In an action by her upon a fire policy on the premises, the trial Court charged that if the jury believed that Marx David was a mythical person, or that there was no such real person, and that he never executed the conveyance to the plaintiff, it was an end of plaintiff's case, and they must find for defendant. On appeal this was held error, the Court saying: "In considering this case it must be assumed that the deed was delivered, and that Mrs. David took possession of the property claiming to be the owner as there was proof tending to show those facts. It must also be assumed, as nothing to the contrary appears, that Henry David executed the conveyance with the intention to vest title in the plaintiff, In Petition of John Snook, 2 Hilton, 566, CHIEF JUSTICE DALY went at length, and with much learning, into the subject, and summed up his conclusion in these words: "All that the law looks to is the identity of the individual, and when this is clearly established, the act will be binding upon him andupon others." This statement of the law is substantially approved in Bernstein v. Hobelman, 70 Md. 39, where the Court quotes African Soc. v. Varick, 13 Johnson, 38, to the effect that where a deed is made to a corporation by a name other than the true name, the plaintiffs may sue in their true name and aver in the declaration that the defendant made the deed to them by the name mentioned in the deed. As there is no privity of contract between the assignee of the reversion under such a lease as the present, and the assignee of the term, there is no reason why the liability of the latter should not be as effectually destroyed by a deed made in good faith to one under an assumed name, as if made to the grantee by his true name. It is not a fraud *Page 404 upon the owner of the reversion, if the owner of the term assign it to another for the express purpose of terminating his future liability for rent, provided the conveyance is designed by both parties to divest the estate of the grantor and vest it in the grantee. There is no principle of law or morals which can require the termor to retain the term for the protection of the owner of the reversion, if he thinks it to his advantage to dispose of it, and it is not material that his grantee has no financial responsibility. In Scanlan v. Grimmer, 71 Minn. 351, it was held that one not engaged in a fraudulent or criminal purpose, may enter into a contract under any name he may choose to assume, and that when his identity is established, the act will be binding upon him and upon others. In that case, Davis, who was the real mortgagee in a bona fide mortgage, for the purpose of that transaction, assumed the name of Alexander as mortgagee, and the mortgage was subsequently assigned in good faith, and for value to Grimmer. The mortgagors, sought to set aside and cancel this mortgage, because they were misled and intended to mortgage the land to Alexander and not to Davis, and the Court below so ordered. On appeal this was reversed, the Court saying, "The Court below failed to apply the true and well settled rule to the facts. It overlooked the distinction between the assumed name of a person actually identified, and a wholly fictitious name without an identified person behind it. In assuming a name in a business transaction, Davis was not engaged in a fraudulent or criminal purpose, and he could bind himself as well as other persons by its adoption and use."
Now what does the testimony show to be the true transaction between Mrs. Hartman and Grafflin. We have seen that it is admitted she would have testified if present that she authorized her husband as her agent to sell the leasehold estate, and that when she executed the deed in question she believed that James Moore was the true name of the actual purchaser.
Wm. E. Schloegel testified that he was an attorney at law, that he knew Louis F. Grafflin; that he drew the deed in question under instruction from Mr. Hartman, who paid the cost *Page 405 of drawing and recording; that he, the witness, placed it on record, and that both Hartman and Grafflin acknowledged in his presenee that the consideration money named in the deed was paid, and that Grafflin acknowledged to him that he bought the property in the name of James Moore, and that the witness knew Grafflin after the recording had the deed in his possession, and accepted it as such, and that two or three months thereafter, Grafflin came to him to know if he had no right to the property under that name; that some parties were attacking the title, and he wished to know if he would not have an action of damages against them. This witness further testified that he drew the deed to James Moore by Hartman's direction, and that he did not know whether there was any such person as James Moore in existence except from what Grafflin said, and that Hartman told him he had sold the property to Grafflin, and Grafflin directed Hartman to make the deed to James Moore. He also testified that after filing the deed for record, he sent the ticket for the deed to Grafflin by Hartman's direction, and that Grafflin told him he gave $100 for the property, and gave his note for that amount, and that the witness knew Grafflin took possession and put up a sign on the property. "For sale, Apply to Mr. Grafflin," and that he understood Grafflin was a real estate man.
Louis F. Grafflin testified in chief that he had been for 20 years in the real estate business in Baltimore, that he had never been known by the name of James Moore, and knew no one of that name, and that he never directed any property to be conveyed to him by the name of James Moore. He admitted the deed in question, after recording, was in his possession, but that it would never have been recorded if he had seen it beforehand; that he and Hartman both went to see a party who would like to buy it, but they could not find James Moore and could not make any title to it.
On cross-examination, he said he thought he told Hartman to make the deed to Louis Moore, and finally admitted specifically that he directed Hartman to have the deed made to some Moore, and after an examination covering six pages of *Page 406 the printed record, he said, "Yes Sir. I agreed to purchase it in the name of Mr. Moore," and that after the deed was recorded and sent, to his house he accepted it. He also admitted that he signed a written statement, offered and admitted in evidence, in which he said "I agreed to give $100 for the Penn Lucy Lot, and had the deed made to Moore. * * * Being ill at that time, and fearing that Al Horner would give me trouble with all my property, which he has done, I ordered the deed made as above." He also admitted he wrote and signed a letter offered and admitted in evidence addressed to Mr. Schloegel, February 16th, 1901, in which he asked, "Haven't I some redress in the Penn Lucy Lot transaction? I buy a lot, and when I try to sell it I find the man who collects the ground rent has informed my would be purchaser the title is not valid. Let me know what rights I have."
On re-direct examination he was asked if Hartman ever offered to produce James Moore, to which the defendant objected, and his objection was overruled, to which the first exception was taken, and the witness answered that Hartman hunted up several James Moores, but he did not know them and would have nothing to do with them. The second exception was to the question whether Hartman gave him a list of James Moores and for what purpose, to which he answered that he did, in order to perfect the title. The third exception was to the question. "What did Hartman propose that any of these James Moores should do to perfect the title?" To which he replied "we could give some one a small amount to take the place of James Moore and sign the deed." The fourth exception was to a question as to what he had stated about an effort made by Hartman and himself to sell the property to a lady, and what was the difficulty in effecting a sale to her, to which he replied. "What was stated in one of those letters, that the title was imperfect?"
It must be borne in mind that the only duty which the assignee of a leasehold estate owes the reversioner, is the payment of the stipulated rent accruing due, and the taxes becoming demandable, so long, and so long only, as he continues *Page 407 to be the owner of the leasehold estate. Whenever he divests himself of this estate by a valid assignment to another, even though it be without a valuable consideration, the reversioner cannot complain. The creditors of the assignee might, in a proper proceeding, attack an assignment made without proper consideration, but the reversioner could not do so. What might be held a fraud upon them, could not be so held as against him. Mr. Poe says in sec. 388 of his work on Pleading that a real assignment, under which the party retains in himself no beneficial interest, "even when made to a pauper and for the express purpose of escaping further liability will not be thereby rendered fraudulent, if the act be really designed to operate as it appears." It is therefore vain to appeal to this Court in the language of the appellee not to "lend its sanction to so unworthy a transaction as was sought to be effected by the attempted assignment of the term in this case." The only question for our consideration is whether the case was properly submitted to the jury to determine whether the assignment was a real and bonafide assignment, and if was such, neither the Court nor the jury were concerned with the motives which influenced the one in conveying and the other in receiving the transfer of the title.
The four exceptions to testimony may be considered together. Each of these exceptions were taken to questions propounded to Grafflin for the purpose of introducing the acts and declarations of Hartman as agent of his wife in reference to the sale, long after the transaction was closed, and his agency was terminated. But the evidence is clear that his agency was only to sell the property, and that the deed had been executed by Mrs. Hartman, the consideration paid by Grafflin passing to her his promissory note therefor for $100, and the deed recorded and accepted by him, long before the acts and declarations of Hartman sought to be introduced. It was only during the course of the negotiations which culminated in this sale and conveyance, that Hartman could be regarded as the agent of his wife. "The declarations of an agent are admissible only because treated as the declarations *Page 408 of the principal, and the latter is bound by them only while the former is acting within the scope of the duties for which he was employed. When these duties are ended, his representative character of necessity ceases." Phelps v. Georges Creek R.R.Co., 60 Md. 550. "Declarations or admissions of an agent by his own authority, and not accompanying the making of a contract, or the doing of an act in behalf of his principal, nor made at the time he is engaged in the transaction to which they refer, are not binding on his principal, and are not admissible in evidence.Bank v. Steam Navigation Co., 11 G. J. 34. There is no authority or reason for treating the agency of a husband for his wife as more extensive in scope, or longer in duration, than that of any other agent similarly constituted. The ruling upon each of these exceptions was therefore erroneous.
We discover no defect of proof as to delivery of this conveyance. "No precise form of delivery need be resorted to. It may be actual or verbal. Acknowledgment, and recording are sufficient to warrant presumption of a legal delivery by the grantor." Stewart v. Redditt, 3 Md. 79.
The possession of the clerk, after recording, will be regarded as the possession of the grantee. Idem. "A certified copy of an instrument required by law to be recorded, proves itself asprima facie evidence of all circumstances necessary to give it validity." Warner v. Hardy, 6 Md. 525; Hutchins v. Dixon,11 Md. 41.
There is nothing in this case to defeat or rebut this primafacie evidence. On the contrary, the evidence is that Grafflin accepted the conveyance. He paid the agreed price by his own promissory note. He accepted the recording ticket, and subsequently accepted and held the deed. He authorized a lady who was negotiating for the purchase of the lot from him to use the stable on the premises, thereby practically entering into possession of the property, and he expressly claimed title thereto in the two letters which have been referred to. All the requirements of the law as to delivery and acceptance are thus gratified. *Page 409
The appellant contends that the plaintiff's first prayer, which was granted, was defective in submitting to the jury a question of law, viz, whether the alleged deed of assignment of the leasehold estate was "a good and sufficient conveyance thereof." If any question had been raised in this case as to the legal effect of the deed in respect to its execution, acknowledgment, or the description of the property it purported to convey, this would have been a fatal defect. But the plain purpose of that clause in the prayer was to permit the jury to find their verdict for the defendant, notwithstanding they found in favor of plaintiff upon all the other facts recited in the prayer, if they found that she had in good faith, by the very deed of assignment offered in evidence divested herself of all interest in the land. That this was the purpose, we think sufficiently appears in the language of the plaintiff's second prayer, which instructs the jury there was no evidence legally sufficient to show that the defendant had divested herself of all estate and interest in, and control over, the lot of land. We do not think in view of this language, that the jury could have been misled by the language objected to in the first prayer and if there was no other erroneous ruling in the case, we should hesitate to hold that reversible error. Those words might well be regarded, in the light of the second prayer, as meaning, and understood by the jury to mean, "by a bona fide conveyance," and so understood, they could not have injured the defendant. Upon a new trial, however, the possibility of being misunderstood should be avoided by more careful language.
There was error in granting the second prayer which withdrew the case from the jury. There was evidence that Mrs. Hartman intended to sell and convey her estate and interest in this land and that when she executed the deed of assignment she did so in good faith, for that purpose, and that she believed James Moore was the true name of the purchaser. There was evidence that Grafflin negotiated for the purchase of this property for himself; that he directed the deed to be made in the name either of James Moore or Louis Moore; *Page 410 that he paid the agreed price of $100 by his own promissory note; that he accepted the recording ticket for the deed, and subsequently accepted the deed itself, and claimed title to the property. This evidence certainly tended to sustain the defendant's contention that she had in good faith divested herself of all estate and interest in the land, if we have correctly stated the law in this case as to the adoption by Grafflin of the name of James Moore, and as to the legal presumption of delivery arising upon the facts of the case; and if this evidence was believed by the jury it would have supported a verdict in the defendant's favor.
The defendant's first and second prayers we think correctly state the law of the case. The first prayer is drawn to meet the theory that Grafflin gave the name of James Moore as that to be inserted in the deed. The defendant's husband was her agent to sell this property and have the deed prepared. He knew that Grafflin was the real purchaser, and it must be presumed that she intended to convey to the real purchaser by whatever name he gave.
The second prayer is drawn to meet the theory Grafflin attempted to set up, that he gave the name of Louis Moore. This is entirely immaterial however, to the defendant's contention, since if Grafflin accepted the conveyance drawn in the name of James Moore, he is bound by such acceptance, though he had directed it to be made to Louis Moore. The only affect the giving of the name of Louis Moore instead of James Moore, can have, is to strengthen the proof that he was the actual purchaser, and as such preferred to use his own first name, discarding the surnameonly to avoid his creditors.
For the errors indicated, the judgment must be reversed.
Judgment reversed with costs to the appellant above and below,and new trial awarded. *Page 411