Lester v. Hardesty

Bartol, C. J., 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 [54] of action alleged, we should have had no hesitation in affirming the judgment upon the demurrer, as a majority of this court are of opinion that there was no obligation upon the defendant to place the assignment upon record which could be enforced in a Court of Law, or on which this action could be maintained. 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 [55] instrument, it does «not fall within secs. 116, 117. But being a deed conveying lands, it comes within the other provisions of the Act to which we have referred, and was not valid to pass the legal title even, between the parties. By the subsequent legislation of the State (Art. 24, sec. 29 of the Code,) full validity, as between the parties, is given to a deed conveying lands, if recorded at any time, in the same manner as if it had been recorded within the time prescribed by law. The effect of *this provision might have been to entitle the plaintiff to maintain this suit, if the declaration had averted that the deed of assignment had been in fact recorded before the action was brought. But no such averment is contained in the nar., nor can it be inferred, from any thing alleged, that the deed of assignment ever was recorded. In this state of the pleading, a majority of this court is of opinion that no valid cause of action is stated in the nar., and that the demurrer was properly sustained ; the judgment of the Superior Court must therefore be affirmed. This case does not come within the Code, Art. 5, sec. t6, or within the principle of Kennerly v. Wilson, 2 Md. 245, and is not a case'in which a procedendo can properly be issued. Here the record does not disclose any legal cause of action, and this court cannot assume, in the absence of sufficient averments, that any good cause of action exists. See Watchman v. Crook, 5 G. & J. 239; Kilgour v. Miles, 6 G. & J. 268. Judgment affirmed.