Hartman v. Thompson

Pearce, J., delivered the opinion of the Court. 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. ⁴⁰⁰ Clemens, and reserved a yearly rent of ninety dollars, payable in two equal installments July 1st and January ist 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 $J35, 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 on Evidence, sec. 74; 1 Jones on Evidence, sec. 176; Frederick Institute 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 pres ⁴⁰¹ ent, 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 testificd’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, and1, 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 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 hot 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 on Deeds, 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 ⁴⁰³ properly bears, that name maybe 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 and upon 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 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 weM 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 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, arid 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; thát some parties were