less such a construction would be unreason- | is such a settled and dominant principle of able," and in Henderson v. Home Insurance public policy. The general and fundamental Company, 90 Md. 47, 44 Atl. 1020, where the division of all corporations is into public and question was whether an insurance company, private corporations; all belong to the one created by an act of the General Assembly or the other of these two classes. "A corof Maryland, having its principal office in poration may be private, and yet the act or Baltimore city, could be sued in any county charter of incorporation contain provisions of the state where it had a local agent, it of a purely public character, introduced was held that it was not unreasonable in solely for the public good, and as a general such case to regard that corporation as a police regulation of the state." Regents of person, and that it was therefore properly the University of Md. v. Williams, 9 Gill & sued in such county under section 144, of J. (Md.) 365, 31 Am. Dec. 72. But "a public art. 75, enacted in 1884, and providing that corporation is one that is created for politi"any person who resides in one county, but cal purposes, with political powers to be excarries on any regular business, or habitual-ercised for purposes connected with the publy engages in any avocation or employment lic good, in the administration of civil govin another county, may be sued, in either county." It must be observed here, however, that the corporation in that case was not a public municipal corporation. Article 23, § 410, as amended by chapter 21, Acts 1900, provided that any corporation, formed under the general laws of this state, which should carry on any regular business, or habitually engage in any avocation or employment in another county than that in which its certificate of incorporation was required to be recorded, might be sued, either in the county where its certificate was required to be, and was, recorded, or in the county where it transacted business; but, except as above provided, all suits against the class of corporations above mentioned were required to be brought in the jurisdiction where their certificates were recorded. This provision could not by any possibility embrace municipal corporations, nor any others created by act of assembly, and the restrictive character of that provision is significant of the purpose that the common-law rule should not be deemed to be abrogated thereby, nor by the general rule of interpretation declared in article 1, § 14, except in local actions. Section 410, art. 23, as enacted by chapter 240 of the Acts 1908, is the chief reliance of the appellant. That provides that: "Every corporation of this state may be sued in any county, or in the city of Baltimore, as the case may be, where its principal office is located, or where it regularly transacts business or exercises its franchises, or in any local action, where the subject-matter thereof lies, and process may be served as is herein above provided against such corporation," etc.

The inquiry is thus finally narrowed down to whether the term "every corporation of this state," as employed in section 410, art. 23, was designed by the Legislature to embrace municipal corporations. The language employed is that of universality; and, if municipal corporations are to be excepted from its operation, it can only be upon the ground of some general and well-recognized principle of public policy, which under the established rules of legislative interpretation permits and requires such exception to

ernment, an instrument of the government, subject to the control of the Legislature and its members, officers of the government, for the administration or discharge of public duties, as the case of cities, towns," etc. Id. 258. "Public corporations are synonomous with municipal or political corporations." Words and Phrases, vol. 6. p. 5781. "Public corporations, commonly called municipal corporations, are not associations, but subdivisions of the state." Goodwin v. East Hartford, 70 Conn. 18, 38 Atl. 876. "A city is only a political subdivision of the state, made for the convenient administration of the government." Wooster v. Plymouth, 62 N. H. 208. This doctrine is universally recognized. Hill v. Boston, 122 Mass. 380, 23 Am. Rep. 332; Talbot Co. v. Queen Anne's Co., 50 Md. 259. The principle that is involved is that of inconvenience to the exercise of the sovereign authority delegated by the state to its municipal corporations, upon the ground that, if they are to be subjected to suit in any and every part of the state, such suits must inevitably hinder and delay the successful conduct of the functions of government.

In State v. Boyd, 2 Gill & J. (Md.) 374, it is said: "Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter, on the principle that what is within the intention of the makers of a statute is within the statute, though not within the letter, and that what is within the letter of the statute but not within the intention of the makers, is not within the statute." Sutherland in his work on Construction of Statutes (volume 2, § 601) substantially adopts the language just quoted, and says: "Municipal corporations, by reason of the purposes for which they are organized, and for which they raise money and possess property, are excepted by implication from various statutes which apply to corporations generally." In Roland Park Co. v. State, 80 Md. 453, 31 Atl. 299, Chief Judge McSherry said: "The result which may follow from one construction or another of a statute is always a potent factor, and is sometimes, in and of itself, conclusive as

order that individuals or private corporations might more conveniently collect their private debts, would be to pervert the great object of the creation of municipal corporations. For these reasons we think the ruling of the learned judge of the circuit court was correct, and the judgment should be affirmed.

It is unnecessary to consider whether the corporation was carrying on any regular business in Baltimore county, since, even if it was, it could not be sued there in this action, if the act of assembly does not embrace municipal corporations.

Judgment affirmed, with costs to the appellee above and below.

(110 Md. 458)

HEARN et al. v. PURNELL. (Court of Appeals of Maryland. March 23, 1909.) 1. DEEDS (§ 54*)-DELIVERY-NECESSITY. Delivery is essential to the validity of a

deed.

in Hooper v. Creager, 84 Md. 195, 35 Atl. | permit these great public duties to be hin967, 1103, 36 Atl. 359, 35 L. R. A. 202, the dered or delayed in their performance, in same judge speaking of the intention of the makers of the statute, says that, "when discovered, it should be followed, although such construction may seem to be contrary to the letter of the statute." Again in Frazier v. Warfield, 13 Md. 304, Judge Bartol adopted the language of Chief Justice Marshall in Fisher v. Blight, 2 Cranch, 386, 2 L. Ed. 304, "that where great inconvenience will result from a particular construction, that construction is to be avoided unless the meaning of the Legislature be plain, in which case it must be obeyed." In recognition of these authorities the Supreme Court of Michigan, in Pack v. Township of Greenbush, 62 Mich. 122, 28 N. W. 746, held that a township could not be sued in any other county than that of which it forms a part, putting the decision expressly upon the ground of "public policy, as well as public convenience." In Linehan v. Cambridge, 109 Mass. 212, under a statute giving the adverse party a right to interrogate any officer of "a corporation," the statute was held not to apply to municipal corporations. In State v. Narragansett Dist., 16 R. I. 424, 16 Atl. 901, 3 L. R. A. 295, the Constitution of the state forbid the enactment of a bill creating any corporation other than religious, charitable, literary, military, or for fire insurance, unless considered by two successive Legislatures, but this was held not to include municipal corporations; and a somewhat analogous provision in the Constitution of Illinois received the same construction in Owners of Land v. People, 113 Ill. 314. In our own state Acts 1825, p. 90, c. 114, authorized attachments to be laid "in the hands of the plaintiff or of any other person or persons whatsoever, corporate or sole" and in Mayor & City Council of Balt. v. Root, 8 Md. 103, 63 Am. Dec. 696, the court held that "the argument from inconvenience sanctioned the construction that the Legislature did not design to include municipal corporations," and this has been the law of Maryland ever since. It is difficult to imagine any sound reason why this argument from inconvenience should forbid the process of attachment against a municipal corporation, while permitting it, under any other form of process, to be dragged from one end of the state to the other at

[Ed. Note.-For other cases, see Deeds, Cent.
Dig. § 116; Dec. Dig. § 54.*]
2. WILLS (8 88*)-DISTINGUISHED FROM Deed.
ter vivos, but is made to depend for its opera-
Where an instrument does not operate in-
tion on the event of the death of the maker to
consummate it, it can only take effect as a tes-
tamentary paper.

Dig. § 209; Dec. Dig. § 88.*1
[Ed. Note. For other cases, see Wills, Cent.

3. VENDOR AND PURCHASER (§ 213*)—FAIL-
URE TO RECOrd ConveyanCE-CREDITORs of
VENDOR.

Where a deed was not recorded until two did not affect the rights of existing creditors of years and seven months after its execution, it the grantor or of those who became such after its date and before it was filed for record, and as against all creditors who became so before only as a contract for conveyance. the recording and without notice it was effective

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 440; Dec. Dig. § 213.*]

4. VENDOR AND PURCHASER (§ 213*)-RIGHTS
OF PARTIES-CREDITORS OF VENDOR.
Where one deeded land to his son, but re-
tained possession by the deed through his agent,
and the deed was not delivered until after the
grantor's death, creditors of the grantor were
not affected thereby.

[Ed. Note.-For other cases, see Vendor and

purchaser, Cent. Dig. § 440; Dec. Dig. § 213.*]

Appeal from Circuit Court, Worcester County; W. Laird Henry, Judge.

Creditors' bill by Margaret D. Purnell against G. Ernest Hearn and others. From the decree, certain of defendants appeal. Affirmed.

great cost and inconvenience to the public
which constitutes the municipality. The
magnitude and importance of the functions
of municipal government are constantly in-
creasing with the growth of population, and
of the various and complex agencies employ-
ed in cities and towns in the public service,
and these functions require the constant
presence and watchfulness of those charged
with their direction and management. To appellee.

Argued before BOYD, C. J., and ERISCOE, PEARCE, SCHMUCKER, and BURKE, JJ. E. Stanley Toadvin, for appellants. William F. Johnson and George M. Upshur, for

BRISCOE, J. This is a creditors' bill, filed fee simple all the land he bought of William in the circuit court for Worcester county by the appellee, who sues on her own behalf, as well as for all other creditors of Isaac N. Hearn, late of that county, deceased, who will come in and contribute to the expenses of the suit, against the appellants and other defendants, in the court below, to procure a sale of the real estate of Isaac N. Hearn, deceased, for the purpose of paying creditors; the personal estate being insufficient to discharge the debts against his estate.

C. Hearn, situate in Little Creek Hundred in Sussex county, Del., containing 300 acres more or less, and known as the "Hearn Land." He also gave and devised to his daughter Cordelia J. White a parcel of land bought of Robert Short, sheriff, contiguous to the aforesaid tract, containing about 18 acres; also, a vacant lot of ground situate in Whiteville, Sussex county, Del., upon which he formerly resided. “All of said parcels of real I give and devise to Cordelia J. White to her and her heirs, and assigns absolutely." He gave and bequeathed to his grandchildren Isaac Raymond Parker and Helen Parker (wife of William Parker), the children of his deceased daughter Olivia E. Parker, each the sum of $50; they being further provided for in a certain policy of insurance upon his life. All the rest and residue of his property, real, personal, and mixed, and wheresoever situate and being, he authorized, empowered, and directed his executors to collect, sell, and dispose of and convey the same, if it be real estate either at public or private sale, including any and all that he may have at his death, and after the payment of all his debts and the legacies hereby and hereinbefore given and the payment of all the charges and costs of administration sale, and funeral expenses and all other proper charges, he gave and bequeathed to his four children, Isaac T. Hearn, Geo. E. Hearn, Cordelia J. White, and Mary E. Short, share and share alike.

The bill avers: That Isaac N. Hearn departed this life some time in the month of March, 1905, seised and possessed of real and personal estate situate, in Worcester and Wicomico counties, of the state and elsewhere, and was, in his lifetime, largely indebted to the plaintiff and other persons; that he departed this life leaving a last will and testament dated the 8th day of September, 1902, duly executed to pass real estate, which has been, in due form, admitted to probate by the orphans' court of Worcester county and letters testamentary thereon duly granted to Isaac N. Hearn, G. Ernest Hearn, and Wm. F. Johnson, the executors named therein; that the executors have applied the personal estate to the discharge of the debts of the testators, but that it is insufficient for the payment of all his just debts. The prayer of the bill, in addition to that for general relief, is for the sale of so much of the real estate as may be necessary for the payment of the claims of the unsatisfied creditors of the deceased. The real estate consists of several valuable The plaintiff below and the appellee here tracts of land, and by the terms of the will claims to be a creditor of the estate to the are devised to his widow, children, and extent of $1,000, on a writing obligatory, datgrandchildren, as follows: To his wife, Mary ed the 24th day of October, 1904, payable 12 H. Hearn, he devises his dwelling house and months after date, with interest. The delot in Snow Hill, in Worcester county, for fendants below are the widow, descendants, and during the time of her natural life, be- devisees, and executors of Isaac N. Hearn. sides bequeathing to her the sum of $400, and The appellant G. Ernest Hearn is a son and from and after the death of his said wife devisee of the testator, and the appellant said testator devises said dwelling house to Elijah C. Shockley is an alleged vendee of his daughter Mary E. Short, wife of Robert G. Ernest Hearn, since the death of the tes Short, absolutely. To his son Isaac Thomas tator, of the two farms, known as the "Dale Hearn he devises certain lands in Pittsville farm," and the "Hutt farm," which were deelection district in Wicomico county for his vised by the will of Isaac N. Hearn to G. lifetime, and at his death to the heirs of his Ernest Hearn, and was made a party defendbody then living, per stirpes. To his son ant, subsequent to the filing of the bill of George Ernest Hearn he devises the farm complaint. It appears that some of the deknown as the "Dale farm" and the farm fendants answered the bill, admitting the alknown as the "Hutt farm," both near the legations of the bill, and consenting to the said town of Snow Hill, absolutely. To his passage of such decree as may be proper. daughter, the said Mary E. Short, he fur- Against others, a decree pro confesso was ther devises the house and lot known as the taken. The widow consents to the sale of "Dixon property" the tenant house and lot the property free and discharged of her on Purnell street, and the lot known as the claims for dower, except as to her residence "Sturgis lot" on Purnell street, all situated in Snow Hill, and agrees to take her share in in said town of Snow Hill, provided said Ma- the proceeds of sale. The appellant G. Ernry E. Short shall pay the executors of said est Hearn, while admitting in his answer the estate $1,000 as charge on said devise. To matters and things alleged in certain parahis son Isaac John Hearn he devises a tract graphs of the bill to be true, avers that the of land situate near Pittsville in said Wi- real estate, called the "Dale farm" and the comico county, absolutely. To his daughter | “Hutt farm," is not responsible either to pay

and owing by Isaac N. Hearn, at the time of his death, because the real estate did not pass to him by the devise in the will, but that the same passed to and vested in and is held by him, under and by virtue of a deed made to him by Isaac N. Hearn and Mary H. Hearn, his wife, dated the 8th day of September, 1902. The appellant Elijah C. Shockley also resists the sale of the property devised to George E. Hearn, and for an additional reason to that urged by the appellant Hearn, avers in his answer that before the filing of the bill of complaint he purchased of G. Ernest Hearn for a present valuable consideration the lands described and called by the names of the "Dale farm" and the "Hutt farm," and that he relied upon the record evidence of G. Ernest Hearn's title to said lands under the deed hereinbefore mentioned, and also upon declarations and assurances of William F. Johnson and G. Ernest Hearn, executors, with reference to the indebtedness of the estate, and that in good faith he has expended large sums of money in improvements upon the same and is now in possession of the lands as purchaser and

owner.

each

On the 8th day of September, 1902, Isaac N. Hearn and Mary H. Hearn, his wife, in consideration of natural love and affection and the sum of $5, conveyed to George E. Hearn, in fee simple, the two tracts of land here in dispute. The deed was properly executed, but it was not delivered or recorded until April 5, 1905, after the father's death, in March, 1905. It will be here noted that the will, which devised the lands, and the deed, were executed contemporaneously; bearing date the 8th of September, 1902. The object and intention of the testator in signing the deed, at the time he made the will, is clearly explained and fully stated by the witness Wm. F. Johnson, who prepared both the will and the deed, and who was the custodian of both papers, until after the death of the testator, and is one of the executors under the will. In answer to the elev enth interrogatory, he states: "Q. 11. Did you have any conversation with Isaac N. Hearn with reference to the preparation of his will? If so, state the same in full. A. 11. I did. I prepared the will at the dictation of Mr. Isaac N. Hearn, and I recollect at the time that he stated to me that he had originally intended the Dale and Hutt farms for his son Tom and the lands in Wicomico for Ernest, but that on account of the association Tom's habits had become so bad that he would have to change and give the farms in Worcester to Ernest and the lands in Wicomico to Tom; and he furthermore said, in this connection, that for fear, as he expressed it, Tom might make trouble, he wished me to prepare a deed also to Ernest for the two farms, which I did." And, in answer to the fourteenth interrogatory, said: "Q. 14. Did you or not prepare the will and the deed on the same day? A. 14. I think so, to the best of my recollection. I recollect that the will was prepared by me. I don't remember that it was executed in my office. I know that the deed was also prepared, I think about the same time, and was taken by Mr. Isaac

There is no objection, on the part of any of the parties to the bill, to the sale of the testator's real estate, except to the two farms known and called the "Dale" and "Hutt" farms, devised to the appellant Hearn, and this appears to be the only matter in dispute and controversy in the case. The case was heard upon bill, answers, replication, and proof, and from a decree of the circuit court of Worcester county, passed on the 30th day of October, 1908, adjudging and decreeing: "That all of the real estate of Isaac N. Hearn deceased, including those described and designated as 'the Dale farm' and 'the Hutt farm,' as well as all the other lands, in both Worcester and Wicomico counties, of the testator, or so much thereof as may be necessary for the payment of his debts, be sold, free, clear, and discharged from all claim of the parties, plaintiffs and defendants, except | N. Hearn, for the purpose of having his wife, the property in Snow Hill devised to the widow, which shall be sold subject to her dower rights." And from this decree the defendants George E. Hearn and Elijah C. Shockley have taken an appeal.

It will be thus seen that the controlling, and indeed the only question presented by the appeal, and which was decided by the court below, is the validity of the deed dated the 8th of September, 1902, from the father, Isaac N., to the son, G. Ernest, Hearn, and the rights of Elijah C. Shockley, the vendee of Hearn, under a subsequent contract of sale, dated the 18th day of November, 1905. The allegations of the bill are supported by the evidence, and the testimony taken before the examiner, while somewhat voluminous, relates almost solely to the defense set up by the appellants in their anThe material facts upon which the

swer.

as he stated, to sign it. He told me at the time that I was to keep both papers. I stated to him for the deed to be valid there should be a delivery-I recollect advising him on that point-to Mr. G. Ernest Hearn. Whether he did hand it to Mr. Hearn I have no positive knowledge, as he afterwards returned both papers to me. At his request I sealed them both in separate envelopes and kept them in my safe until after Mr. Isaac N. Hearn's death." It also appears that the note dated the 10th day of September, 1902, delivered to Isaac N. by George E. Hearn, the alleged purchaser of the lands, in part consideration of the deed, contains the following: "Whereas Isaac N. Hearn and wife have conveyed to me by deed dated the eighth day of September, 1902, the two farms, one known as the 'Dale farm' and the other as the 'Hutt farm,' described in said deed, in

uable consideration, I promise to pay to the | it need only be said the delivery of the deed said Isaac N. Hearn the sum of fifteen hundred dollars with interest thereon from the date hereof on demand, this obligation to become void and of no effect, should the title of said farms become again vested in the said Isaac N. Hearn before the payment of this obligation."