hold in severalty division E in trust for Talpott Denmead for his life, with remainders over. Carrie Denmead to hold in severalty division F for Helen B. Denmead for her life, with remainders over. Division A consists of 23 ground rents in the city of Baltimore.

queathed all the residue of his estate, not therein otherwise disposed of, to the Safe Deposit & Trust Company of Baltimore, "in trust for the use of all my children for and during their respective lives, and upon the death of any one of my children, leaving a wife or issue living at the death of such one Mrs. Taylor, one of the three sisters of of my children, the trust as to the share of Mrs. Denmead, the annuitants under her will, such child shall cease, and its share shall be died August 10, 1910, and thereupon the Safe divided as follows: If there be a wife and no Deposit & Trust Company of Baltimore, in issue then living, the whole of the share pursuance of the direction of said decree for shall go to the said wife; and if there be ispartition, and for the purpose of partitioning sue then living and no wife, the whole shall and dividing among those entitled thereto in go to such issue per stirpes, and if there be remainder the equal part of the property or a wife and also issue, the wife shall have the estate there constituting division A held to same part as one of the children of such one provide the annuity of Mrs. Tayor, made a of my children so dying, and the rest of the private sale of one of said 23 ground rents share shall be divided among said issue per of $63 per annum to Henry T. Oudesluys stirpes." In event or the death of all the tesfor the sum of $1,400, and reported said sale tator's children without leaving any wife or for ratification to the circuit court No. 2 of issue surviving any one of them, the whole Baltimore city. The purchaser excepted to rest and residue of the estate was devised and the ratification of this sale, alleging that the bequeathed to numerous legatees. The testatrustee could not give him a good and mar-tor died leaving surviving him but one child, ketable title to said ground rent: (1) Because "it is impossible at the present time to ascertain who are or may be the heirs and children of said life tenants who at the time of their respective deaths would be entitled to the estate in remainder, and because the only method by which the interests of such unknown, and perhaps unborn, persons may be sold is by proceedings under section 213 of article 16 of the Code of Maryland, this proceeding not having been brought there under, but brought only for the purpose of making a partition in kind of a part of the property passing under said will." (2) "Because said ground rent by virtue of said will and the death of Mrs. Taylor became a part of Mrs. Denmead's undivided residuary estate and the estate and property of the persons to whom it was limited by the fourth and fifth items of said will. (3) Because of the birth subsequent to the date of the decree for partition of the grandchildren hereinbefore mentioned of Mrs. Denmead. Those three exceptions may be treated as one and the same, viz., that said great grandchildren, and other future born persons who might have a contigent interest in said ground rent, are not bound by the decree for partition, and could only be bound by proceedings under section 213 of article 16 of the Code.

[1] It is not denied that the power of sale which the trustee is here claiming to exercise is derived exclusively from that clause of the decree for partition which has been transcribed herein, so that the only question is whether the court had jurisdiction to decree a sale of this ground rent so as to bind the contingent remaindermen not parties to the cause. This question seems to us to have been settled beyond controversy by the decision in Ball v. Safe Deposit Company, 92 Md. 503, 48 Atl. 155, 52 L. R. A. 403. In that case the testator, Dr. John K. McCulloh, in

William W. McCulloh, still an unmarried man at the time of the passage of the decree in that case. The bill was filed by the said William W. McCulloh and the Safe Deposit & Trust Company of Baltimore against all the legatees in remainder in event of the death of William W. McCulloh without leaving a wife or issue surviving, and the prayer of the bill was that the court would assume jurisdiction of the trusts under the will and approve and ratify investments and change of investments made; that the trustees might be authorized to sell a certain ground rent of $280, constituting part of the corpus of the trust estate, and that it be authorized from time to time, upon the orders of the court, to sell any of the investments it then held and to reinvest the proceeds upon the same trusts, the bill averring that it would be for the benefit and advantage of the trust estate that power and authority should be given to make such sales. Testimony was taken tending to show that it was to the benefit and advantage of the trust estate to sell the particular ground rent mentioned, and the witnesses testified that they thought it desirable that the trustee should be authorized to make future sales as necessity or emergency should arise, and a decree was passed July 25, 1900, authorizing the sale of the particular ground rent mentioned, and authorizing future sales from time to time, upon orders of the court, whenever it should appear to the court that such sale would be advantageous. The sale of the particular ground rent mentioned was consummated, and subsequently the trustees reported an offer by the appellant for another ground rent the sale of which the trustee believed to be to the advantage of the persons interested, and which two real estate brokers of Baltimore city certified they believed to be advantageous to the owner of the rent. The court

der nisi, and the reported purchaser except- [ v. Sprecher, 35 Md. 474, Long v. Long, 62 Md. ed, assigning the same objections which are urged to the ratification of the sale now before us. These exceptions were overruled by a pro forma order or decree, and the sale was finally ratified and confirmed, but on appeal to this court that order was reversed and the sale was set aside.

DUTY.

Under the rule that a fiduciary is presumed to have faithfully performed his trust, it will not be presumed, in the absence of a contrary showing, that an administrator transferred property of the estate without an order of the orphans' court, contrary to statute.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 367.*] 2. EXECUTORS AND ADMINISTRATORS (§ 309*) -ASSIGNMENT OF ASSETS-AUTHORITY.

Evidence held to sustain a finding that the administrator's assignment of a note to the widow of deceased payee was authorized by order of the orphans' court.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1259, 1260; Dec. Dig. § 309.*]

3. PROPERTY (§ 9*)-TITLE-PRESUMPTION.

Long acquiescence in any adverse claim of title is sufficient as a rule to authorize the

jury to presume that the claim has a legal

foundation.

[Ed. Note.-For other cases, see Property, Cent. Dig. 88 78, 87; Dec. Dig. § 9.*]

4. SUBROGATION (§ 7*)-REMEDIES OF SURETY. Though at common law a surety's only legal remedy upon paying the assured debt is to sue the principal upon his implied agreement for reimbursement, in equity a surety is subrogated to the creditor's securities.

8. SUBROGATION

7) REMEDIES OF SURETY. Code, art. 8, 5, entitling a surety on a note, who pays the money due thereon, to an assignment thereof, and, by virtue of such assignment, to maintain an action in his own name against the principal debtor, embraces all kinds of sureties so as to include within its operation the suretyship of an accommodation maker of a promissory note.

[Ed. Note. For other cases, see Subrogation, Cent. Dig. §§ 17-28; Dec. Dig. § 7.*]

Appeal from Circuit Court, Carroll County; Wm. H. Thomas, Wm. Henry Forsythe, Jr., and James R. Brashears, Judges.

Action by George A. Fuhrman and another against John T. Fuhrman. From a judgment for plaintiffs, defendant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, PATTISON, and URNER, JJ.

Francis Neal Parke and James A. C. Bond, for appellant. Ivan L. Hoff and Guy W. Steele, for appellees.

URNER, J. The appellant and appellees

and their parents were comakers of a promissory note for $1,000 secured by a mortgage of property in which they were all interested. After the death of the payee intestate, the note and mortgage were transferred to his widow by the administrator of his estate. Upon the failure of the appellant to continue the payment of the interest, to which he had attended since the inception of the indebtedness, the appellees were compelled to pay the amount of the principal and interest in order The remedy given a surety by Code, art. 8, to avoid a foreclosure of the mortgage. The $5, entitling a surety on any note who pays note and the mortgage were thereupon asthe money due thereon to an assignment there- signed to the appellees, and they subsequentof, and, by virtue of such assignment, to main-ly brought this suit for reimbursement from tain an action in his own name against the principal debtor, is only available against the principal debtor, and not against cosureties.

[Ed. Note.-For other cases, see Subrogation, Cent. Dig. §§ 17-28; Dec. Dig. § 7.*] 5. SUBROGATION (§ 7*)-REMEDIES OF SURETY -REMEDIES AGAINST PRINCIPAL.

[Ed. Note. For other cases, see Subrogation, Cent. Dig. 88 17-28; Dec. Dig. § 7.*] 6. PRINCIPAL AND SURETY (§ 190*)-REMEDIES OF SURETY-ACTION AGAINST PRINCI

PAL-JOINT ACTION.

While at common law two or more sureties must sue their principal separately for reimbursement for payment of the assured indebted ness unless payment was made from a joint fund;

under Code, art. 8, § 5, entitling the "surety" on a note, who pays the money due thereon, to an assignment thereof, and, by virtue of such assignment, to maintain an action "in his own name" against the principal debtor, construed in view of article 1, § 7, providing that the singular always includes the plural when used in the Code, unless such construction would be unreasonable, two sureties, receiving an assignment of the note paid by them, may jointly sue to enforce the principal debtor's liability for reimbursement, though the payment was made from their separate money, and not from a joint fund.

[Ed. Note. For other cases, see Principal and Surety, Cent. Dig. § 573; Dec. Dig. § 190.*] 7. BILLS AND NOTES (§ 49*)—ACCOMMODATION PARTIES.

An accommodation party to a negotiable note is in effect a surety, having the same right of recourse against his principal as other sureties. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 66; Dec. Dig. § 49.*]

the appellant upon the ground that he was the real principal in the transaction, and that they were merely his sureties. The declaration contains the common counts in assumpsit and special counts on the note, and the defendant pleaded the general issue and limitations. To the latter plea the plaintiffs replied a new promise. The only issues of fact in the case related to the questions of sure tyship and the suspension of the statute by acknowledgments of the defendant. Upon these issues the jury found for the plaintiffs. The court below rejected certain prayers offered by the defendant proposing directions for a verdict in his favor; and the propriety of this ruling presents the principal question for our consideration.

There are two grounds upon which it is claimed that the plaintiff's proof should be held legally insufficient to support recovery. The first is that there was no evidence offered to show that the assignment of the note by the administrator of the payee's estate to the plaintiffs' assignor was authorized by an antecedent order of the orphans' court under whose jurisdiction the estate was being administered. The assignment in question was in the form of an ordinary indorsement of

ful or wrongful, the act being one that may be either according to its environment, and there is nothing to show that it is wrongful, the natural and the general presump

the note to the order of the assignee. It was as an innocent act. And so, when the alsigned by the administrator in his representa-ternative is as to whether the act is righttive capacity. There was nothing in the indorsement or on the note to show the occasion for the transfer. It was in evidence that the assignee was the widow of the payee, and this fact would suggest the idea that she receiv- | tion, founded on observation and experience, ed the note on account of her interest in the is that it was rightful." The present case is estate. It was contended, however, that the clearly entitled to the benefit of this principle. words "for value received," used in the as- [2] There is another consideration which signment to the widow of the mortgage se prevents the adoption of the appellant's thecuring the note, indicated that the transfer of ory. It is in evidence that from the time the both instruments was made in pursuance of note was given in 1881 the appellant paid the a sale. Upon the assumption that this was interest annually to the original payee until the real nature of the transaction, and in the his death in 1892, and thereafter continued absence of evidence to show that the sale was the interest payments to the widow for 15 duly authorized, it is urged that the assign-years after she had received the note by asment must be held nugatory under section signment from the administrator. During 281 of article 93 of the Code, which provides this protracted period the widow remained that: "No executor or administrator shall the holder of the note, and her ownership was sell any property of his decedent without an uniformly recognized by the appellant. There order of the orphans' court granting his let- was certainly in this circumstance a suffiters being first had and obtained authoriz- cient basis for the inference that the assigning such sale; and any sale made without an ment by the administrator was not open to order of court previously had as aforesaid question. shall be void, and no title shall pass thereby to the purchaser."

Without finding it necessary to determine whether the mere use of the words "for value received" in the assignment of the mortgage would be sufficient to justify the inference that the accompanying note had been sold to the assignee, especially in view of the widow's relationship to the estate, but accepting this theory for the purposes of our decision, we are of the opinion that the evidence in the record was legally sufficient to sustain the validity of the title transmitted by the administrator of the payee.

[1] To hold otherwise would be to assume from the mere absence of proof to the contrary that the administrator may have committed a breach of his duty by violating the plain prohibition of the statute we have just transcribed. This would be in direct conflict with the principle that a fiduciary is entitled to the presumption of fidelity in the performance of his trust. In Shilknecht v. Eastburn, 2 Gill & J. 130, the title involved was dependent upon a deed executed by a trustee appointed by a decree which express ly provided that no deed should be given until the report of sale was finally ratified. There was no evidence as to the ratification of the sale. "The law is well established," said the court, "that facts to aid a title may in some cases be presumed. * * It is not to be intended the trustee disregarded this injunction. He had no interest in violating it, and the law will always lean to the presumption that the trustee has faithfully executed his trust." It was said in Brewer v. Bowersox, 92 Md. 574, 48 Atl. 1063: "Where an act may be innocent or culpable, as antecedent circumstances make it one or the other, and those antecedent circumstances are not disclosed, the plainest dictates of

[3] It is a general rule that "long acquiescence in any adverse claim of right is good ground on which a jury may presume that the claim had a legal commencement." 1 Greenleaf on Evidence, § 47. In the absence from the record before us of any evidence to show that there was any irregularity in the assignment, we think the long-continued recognition of its validity by the appellant was a fact from which it might be legitimately inferred that an order of court, if really required by the nature of the transaction, had been duly obtained. The cases of Dittman v. Robinson, 57 Md. 486, and Green v. Hart, 57 Md. 234, relied upon by the appellant to support the contention we have discussed, were concerned with very different questions from the present. In each of these cases the action was instituted by an administrator d. b. n. c. t. a., and the declaration was held defective in not alleging an order of the orphans' court authorizing the suit. The necessity for an averment by a personal representative as to his authority to sue rests upon a principle which is not at all inconsistent with that which permits a presumption as to the rightfulness of his executed acts under such conditions as exist in this case.

The second general objection raised by the defendant to the legal sufficiency of the evidence to support a verdict for the plaintiffs is that the record shows without dispute that they paid the note with their separate moneys, and not out of any fund in which they were jointly interested, and that consequently they are not entitled to a joint recovery. This theory is dependent upon the common-law principle that, if two or more sureties pay a debt, they must sue separately for reimbursement from their principal, unless they have made the payment out of a joint fund. 32 Cyc. 265; 7 Amer. &

on Suretyship, 209. The reason of this | had reference to the equitable right of subrule is that the implied promise of the prin- rogation which existed independently of cipal to indemnify the sureties is regarded statute in favor of a surety who paid the as having been made to them separately, debt of his principal. So far as legal remand not jointly. It is insisted that the ap- edies against the principal were concerned, plication of this principle to the case at it is well settled, as already indicated, that bar is not affected by the statutory provi- the surety was confined at common law to sion (Code, art. 8, § 5) that: "The surety his action in implied assumpsit. The crediin any bond or other obligation for the pay-tor's claim against the principal being exment of money or promissory note, or the tinguished by the surety's payment, the evindorser of any protested bill of exchange, who shall pay or tender the money due thereon, whether the whole be due or part has been previously paid, shall be entitled to an assignment thereof; and may, by virtue of such assignment maintain an action in his own name against the principal debtor."

idence of that indebtedness could not be made the basis of a suit at law. It is evident that our statute enlarges the right of the surety in this respect. He is now entitled to have assigned to him the instrument representing the debt he has paid and to maintain an action on it against the prin cipal debtor by virtue of the assignment.

[5] The common-law right of a surety to sue his principal in implied assumpsit has therefore been supplemented by the statutory right to sue after assignment on the original evidence of indebtedness. This spe cial remedy, however, is available only against the principal debtor, and cannot be utilized as against cosureties. Carroll v. Bowie, 7 Gill, 42; Martindale v. Brock, 41 Md. 576.

The contention is that the section quoted, so far as it applies to bills of exchange and promissory notes, is merely declaratory of the common law; and a suggestion to that effect is cited from 1 Poe on Pleading and Practice (4th Ed.) § 115. [4] At common law the only legal remedy of the surety was to sue the principal upon his implied promise of reimbursement. Crisfield v. Handley, 55 Md. 196; note to Nelson v. Webster (Neb.) 68 L. R. A. 517; 32. Cyc. 261. In equity the surety was sup- [6] The statute in conferring the right of rogated to all the remedies and securities action we are considering uses the term of the creditor. Crisfield v. Handley, supra; "surety" in the singular. But the Code enOrem v. Wrightson, 51 Md. 34, 34 Am. Rep. acts in its rules for the interpretation of its 286; Wallace v. Jones, 110 Md. 143, 72 own provisions (article 1, § 7) that: "The Atl. 769; note to 68 L. R. A. 517, supra. In singular always includes the plural, and vice Mr. Poe's discussion of the statute to which versa, except when such construction would we have referred, in his work on Pleading, be unreasonable." There is no reasonable supra, the legal right of action just stated ground upon which to impute to the Legwas mentioned as applying to bonds given islature the intention to discriminate in the for the payment of money, and it is then act between a single surety who pays the said: "By this section, however, an addi- debt and two or more sureties who join in tional remedy is given to the surety upon accomplishing the same object. The obvi a bond against the principal debtor for up-ous purpose of the statute was to provide a on paying it he is declared to be entitled to special method for the enforcement of the an assignment of it, and may upon it main-right of a surety to be reimbursed. This tain an action against the principal debtor. right exists in favor of all the sureties in With reference to promissory notes and bills any obligation for the payment of money. of exchange, the section is perhaps only None of them can exercise it without the declaratory of the common law." The last payment of the entire debt, and, if all comsentence in this quotation is based upon an bine to discharge the claim of the creditor, observation of Justice Livingston in Lenox there is no just reason to deny to them the v. Prout, 3 Wheat. 526, 4 L. Ed. 449, that: benefit of the statutory remedy. In this "By an act of Maryland it seems express-case the two sureties have actually received ly provided-which is, perhaps, only declar- an assignment of the note they have paid; atory of the common law-that an indorser and, as they are jointly interested in the evmay tender to a plaintiff the amount of idence of indebtedness which they have judgment which he has recovered against the thus acquired under the law, they are clearmaker of a note, and obtain an assignmently entitled to maintain the present joint of it." The act here referred to is section action upon it to enforce the liability of the 6 of article 8 of the Code, which provides principal debtor. that when judgment is recovered against The questions we have discussed were the principal debtor and surety, and the raised upon the defendant's first and seclatter pays the amount due, he shall be en-ond prayers. As they were opposed to the titled to an assignment of the judgment and views we have stated as controlling the execution in his own name against the prin- case, we approve of their rejection. cipal. Justice Livingston was disposing of a suit in equity, and his allusion to the com

The defendant's fourth prayer sought to have the jury instructed that, under the