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which, conceding the truth of all the material averments, in the first count of the declaration, the second having been withdrawn, presents the question, whether they make out a sufficient cause of action.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 *57maintain his suit, must be considered, and not merely the isolated statement of the non-recording of the deed, which is but a constituent part thereof.
*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 *58time prescribed by law, and his neglect to do so’ is good cause of action.
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.