charged, but he requires strict proof in regard | applied to the discharge of the plaintiff's mortthereto. He further states that he received un- gage, it becomes necessary to determine the der his father's will the reversion and ground question of the validity and the true nature rent, secured by the deed and lease referred to, and effect of the deed and lease, which stands and that he still holds the same; and he insists ahead of the plaintiff's mortgage; and that that the plaintiff shall be required to show in question must be determined not only as bewhat manner and to what extent she is inter- tween the plaintiff and defendant Gaither, ested in having the deed and lease declared to but as between the codefendants, Gaither and have the effect of the mortgage; and he denies Clarke, and they will be bound by the deterall imputations of fraud, oppression, etc. mination. Proof was taken and, by agreement, a decree pro forma was entered, from which this appeal is taken by Thomas H. Gaither, one of the defendants. 1. It is contended for the appellant that Mrs. Clarke has not alleged and shown such state of facts as will entitle her to a standing in court as against the appellant; that it is neither alleged in her bill nor shown in proof that she is or will be affected by the strict legal operation of the deed and lease, or that the leasehold estate would not be sufficient to satisfy her mortgage; and further, upon the assumption that the deed and lease should be allowed the operation only of a mortgage security, that she has failed to offer to redeem or make tender of the amount due the appellant, without which her bill ought not to be sustained. But these contentions, although very ingeniously pressed, we think are wholly untenable under the circumstances of this case. The mortgage to Mrs. Clarke does not profess to be a leasehold estate merely; and if it were restrict ed and made to operate upon a mere leasehold interest of the mortgagor in the land, it would, according to the settled law of this State, become subject to the covenants and conditions of the lease, and would be liable to be entirely defeated by the exercise of the reserved power of re-entry for the nonpayment of rent or taxes. Such a state of things would certainly render her mortgage security very precarious, to say the least of it. But the plaintiff charges and insists that the deed and lease constitute nothing more than a security for money loaned; and in that light she is entitled to treat them simply as a prior incumbrance to her own mortgage; and as it is necessary to foreclose by sale of the mortgaged premises, justice to herself and to other lien holders requires that the true nature and effect of the deed and lease should be ascertained and declared, and whatever may be due to the appellant shall be paid out of the proceeds of sale. And this, if the plaintiff be correct in her contention as to the objects and purposes of the deed and lease, would seem to be entirely consistent with principle, and promotive of substantial justice. As a general principle of equity procedure, it is very true that if the plaintiff can plainly and with certainty get at his rights and have them determined without trying and deciding a case as between codefendants, the court will not enter into such case. But it will enter into and decide such case, as between codefendants, whenever it is necessary for the fair determination of the plaintiff's case; and the codefendants will be bound by such determination. Cottingham v. Shrewsbury, 3 Hare, 627. This being a proceeding by a mortgagee to have the mortgaged premises sold, in order to determine what may be sold and what may be It was said by the court of appeals, in the case of Thomas v. Mason, 8 Gill, 11, that “It is the constant practice to permit a subsequent mortgagee to question the title and claim of a prior incumbrancer, and to take advantage of the legal defect or taint of the elder incumbrancer. It is the right of every party in equity to question the title or the legality of a claim that precedes his own, and, by a successful impeachment, to render it void, and defeat it." Nor do we think that it was at all necessary that the plaintiff should have offered to redeem by making tender of the amount supposed to be due to the defendant, Gaither, in respect of what is alleged to be the informal mortgage held by him, in the shape of the deed and rent reserved by the lease. Under the circumstances of the case such tender would have been impracticable, as the amount really due, if any, was wholly unknown to the plaintiff. A willingness to allow all that is actually and fairly due is the equitable requirement in a case like the present; and this the plaintiff has expressly reserved to the appellant in her bill. Nothing more could be required, in order to do justice in the case. Thomas v. Mason, 8 Gill, 1, 12; Doub v. Barnes, 1 Md. Ch. 128, 141. 2. We come now to the consideration of the question whether the original transaction between George R. Gaither and Clarke was really a loan of money, and the deed and lease adopted as a device to evade the law against usury, or whether it was a bona fide sale and purchase of the farm, and a simultaneous lease thereof to the vendor. And in regard to this question, in view of the facts disclosed, there would seem to be but one conclusion to which any rational mind could come; and that is, that the transaction was simply a loan of money, at a usurious rate of interest, taken in the form of a rent. It is not shown or pretended that the elder Mr. Gaither had ever seen the farm in question before the money was paid over to Clarke, or that he had ever contemplated the purchase of it. There is no evidence whatever of any negotiation for the purchase of the farm; but all the preliminaries to the making of the deed and lease were such as evidenced the purpose of making a loan of money and of obtaining ample security therefor. The negotiation for the loan was conducted by and through the late C. C. Magruder, Esq., of Upper Marlboro, and John Glenn & Co., real estate brokers, of the City of Baltimore. Mr. Magruder has since died; but Mr. John Glenn is still living, and has been examined as a witness in the case; and the evidence furnished by him is most material. Mr. Glenn states in his testimony that he remembers negotiating with Mr. C. C. Magruder, attorney for Joshua T. Clarke, for a loan on certain property belonging to Clarke or his wife, or both, and of consummating that loan. The deed and lease being read to Mr. Glenn, he was asked why that form of security was resorted to, instead of a mortgage to secure the money loaned by Gaither to Clarke; and his reply was: "Because the rate of interest was over 6 per cent." Mr. Glenn was then requested to produce any letters he might have, relating to the subject; and he produced his letterpress book, containing two letterpress copies of letters addressed to Mr. Magruder, the one bearing date the 30th of October, 1869, and the other the 22d of November, 1869, and from which letterpress book transcripts were made by the examiner. And the witness seems to have no doubt that the originals of these letters were duly mailed to Mr. Magruder. Objection, however, was taken to these copies; and afterwards the originals were produced, taken from among the papers of Mr. Magruder, to whom they were directed. These original letters proven to have been found among the papers of Mr. Magruder, deceased, bear upon their envelopes the postmarks or stamps, and postage stamps, showing the dates of their passage through the post office; and they, in every particular, correspond with the letterpress copies. Thus proven and identified, we think these letters were properly admissible in evidence. 1 Greenl. Ev. §§ 116, 120. See also § 40. They are admissible in evidence as part of the res gesta. By the first of these letters Mr. Glenn informs Mr. Magruder that Mr. Gaither will take Clarke's property of 500 acres, as security for a note of $6,000, payable two years after date, without interest, to be discounted by Mr. Gaither at 12 per cent per annum; provided Mr. Magruder considered the property worth easily from $18,000 to $20,000, and provided he could recommend the man. This proposition seems to have been based upon the supposition that the farm contained 500 acres, and was worth at least $18,000. But as we may infer, upon being informed that it contained but 400 acres, and was worth less than $18,000, the amount of the proposed loan was reduced to $5,000, at 12 per cent per annum; as that was the loan actually consummated by Mr. Gienn. The second letter was written after the deed and lease had been executed, and it refers to some apprehension expressed by Mr. Gaither, that his lien on the farm was not the first; and Mr. Magruder is requested to be explicit upon the subject, and to have the deed recorded, and forward it at once. The first year's interest of 12 per cent was deducted from the $5,000, and Clarke received of the loan only $4,400. There is, certainly, nothing in all this to indicate a purpose on the part of Mr. Gaither to really purchase the farm; and it is difficult to believe that Clarke would have been willing to sell his valuable farm, of 400 acres, for $5,000, and take a lease thereof at an annual rent of 12 per cent of the purchase money. And that an actual bona fide sale and purchase of the farm was not what was really and truly intended by the parties is strongly indicated by the letter of the appellant, of February 20, 1880, addressed to Clarke upon the subject of his indebtedness. In that letter, the appellant says to Clarke; "I did not mean to change our agreement; I only wanted you to see how the acct. stood between us. I will not trouble you, if you so choose, until February, 1881. I think you said you would try, during this year of extension, to pay something on account of the interest, as it matured. I would advise, if you can raise any money, that you pay what you can to keep the interest down. You know the larger claim I have the less chance you will have to get your wife's claim." It was not rent, but interest, that Clarke was advised to keep down, and the whole tenor of the letter shows that it was to an interest bearing claim that reference was made. Upon the whole, we are entirely of opinion that the original transaction was a loan of money at forbidden rates of interest, and that the deed and lease were adopted as means to evade the law. They were intended as security for the loan, and nothing more. And such being the case, it is wholly immaterial that the transaction was made to assume the form of a sale and lease of the farm,-the general principle being that if the transaction be really a borrowing and lending of money, at unlawful rates of interest, as it doubtless was in this case, no ingenuity can give to it a form that will shield it against impeachment and judicial investigation. This case falls directly within the principle of the case of Montague v. Sewell, 57 Md. 407, and must be disposed of accordingly. Upon account stated, whatever may be found to be due the appellant, on account of the loan of $4,400. with interest at 6 per cent per annum, will be allowed priority over the mortgage claim of the plaintiff, Mrs. Clarke. The decree passed by the court below is correct, and is therefore affirmed. Decree affirmed and cause remanded. Lambert GITTINGS et al., Appts., v. Emily WORTHINGTON et al. P. Hanson HISS et al., Appts., v. Emily WORTHINGTON et al. ST. PAUL'S EVANGELICAL LUTHERAN CHURCH OF BALTIMORE CITY, Appt., v. Emily WORTHINGTON et al. 1. Innocent bona fide purchasers by virtue of a judicial sale of real property, if obliged to yield their title and possession to a superior title, are entitled to an allowance for the value of all beneficial permanent improvements of the property. 2. Where a purchaser of real property at a judicial sale which did not bar the title of some of the joint owners, has sold and given deeds of portions of the land to purchasers who have improved them by the erection of valuable buildings, such sales do not increase or diminish the rights of such joint owners, who may proceed to have par. tition as if they never had been made. 3. If the shares of such joint owners not 4. The more eligible mode of making the Argued before Alvey, Ch. J., Irving, Robinson, Yellott and Bryan, JJ. By his last will, admitted to probate in 1824, Kennedy Long devised among other property a certain tract of land, in fee, situate in Baltimore County (now_City), in_trust for his six children, Andrew, Thomas, James, Eliza, Mary (subsequently Mrs. Knapp) and Amelia (subsequently Mrs. Worthington); the shares of Andrew, Eliza, Mary and Amelia were for life, with remainders to their respective children. March 1, 1833, a bill was filed in the Baltimore County Court for the sale of said lands, tor, and the trustee were made parties. The to which the widow, six children of the testaland was sold under said proceedings, and conveyed to the purchasers who supposed they were acquiring a fee simple title. In 1848 under sundry mesne conveyances from the purchasers the property became vested in sole owner in fee of said tract, subsequently Philip Hiss, who, supposing himself to be the conveyed parts of it, with covenants of special warranty only, to various parties, several of the conveyances being leases for ninety-nine years, 6. A vendor selling in good faith is not 7. Where the conveyances of the portions (Additional Opinion.) 8. Held, that the entire tract should contribute to make up the value of the portion which shall be taken from the unimproved land, and that to make up this contribution the value of the land must be estimated without regard to the improvements, and that every portion of the tract must be charged with a sum proportioned to its value. 9. Held also, that the responsibility of the devisees of the vendor is dependent upon and limited by the covenants contained in his conveyances. 10. When land leased for a term of years is to be assessed, the assessment must be levied on lessee and reversioner in proportion to the value of their holdings (Decided March 17, 1887.) APPEALS from a decree of the Circuit Court of Baltimore City, in favor of complainants in a bill for partition of land. Reversed. June 1, 1880, certain descendants of Kennedy Long, who claimed that the remainders to his grandchildren did not pass to the purchasers under the sale in 1833, filed a bill in the Circuit Court of Baltimore City against other of his descendants and against Philip Hiss and his grantees, and lessees, for the sale of said tract, alleging that said tract was incapable of an advantageous division specifically among those entitled thereto and cannot be divided without loss or injury to the parties interested, etc. Shortly after the filing of the bill Philip Hiss died, and his devisees were added as parties. The bill was dismissed by the circuit court; but upon appeal this court (62 Md. 33) determined that nine of the descendants of Mrs. Worthington were entitled to an undivided sixth, and five children of Mrs. Knapp to one sixth of another sixth of said tract; and the cause was remanded, in order that a decree might be passed accordingly. The case having been remanded, the complainants insisted on a sale of the entire tract, on the ground (as alleged in the bill) that it was not susceptible of partition. Hiss' grantees at the same time contended that the share of the claimants should be allotted to them out of the unimproved land in the possession of Hiss' devisees, if a partition in kind could be made, or, in case a sale were necessary, out of the proceeds of the sale of the land held by such devisees. The circuit court was of opinion that if the partition in kind could have been fairly made out of the vacant ground, the entire loss must fall on Hiss' devisees; but, as such partition was not practicable, a sale must be ordered and each a decree was passed accordingly. holder must bear his seven thirty-sixth loss and From this decree Hiss' grantees appealed. Hiss' devisees also appealed, in order to avail themselves of the benefit of a reversal by this court upon the question of a partition in kind. Further facts appear from the opinion. Messrs. Arthur W. Machen and Ed. Otis Hinkley, for Lambert Gittings, et al., appellants: In equity, there is no necessity that a partition should be so made as to give each party a share in every part of the property. Each party must have his share in value, and that is all which is required. Brookfield v. Williams, 1 H. W. Green, Ch. 341, 345; Hagar v. Wiswall, 10 Pick. 152; Buck v. Wolcott, 15 Gray, 502; Paddock v. Shields, 57 Miss. 340; Abbott v. Berry, 46 N. H. 369; Earl of Clarendon v. Hornby, 1 P. Wms. 446, quoted in the note to Agar v. Fairfax, 2 White & T. L. Cas. Eq. part 1, * 471; Canning v. Canning, 2 Drew. 436, quoted in same note, p. 471, 472. Upon the bill in this case, partition is the proper relief if the property admits of it and no injury is thereby done to the claimants; and the proof does not justify a sale. Earle v. Turton, 26 Md. 34; Thruston v. Minke, 32 Md. 576; Balt. & O. R. R. Co. v. Trimble, 51 Md. 109. As between a sale and an actual partition, the court inclines to the latter alternative. Thruston v. Minke, above cited, and other cases referred to in American note to Agar v. Fairfax, 2 White & T. L. Cas. part 1, p. 916. Catlin v. Catlin, 60 Md. 577. It is the duty of the court of equity in making a partition to cause the improvements to be assigned to the respective owners of them. Freeman, Partition, § 509; Leigh v. Dickeson, 15 L. R. Q. B. Div. 65; Crafts v. Crafts, 13 Gray, 360; Brookfield v. Williams, 1 H. W. Green, Ch. 341; Hall v. Piddock, 6 C. E. Green, 311. And see 2 White & T. L. Cas. part 1, p. 916. of Hiss, which will be respected by a court of chancery in a partition, must equally be recognized if a sale is decreed in lieu of partition. The grantor cannot derogate from his own grant. Reese v. Reese, 41 Md. 554; Janes v. Jenkins, 34 Md. 1. Hiss could not, nor can his representatives since his death, be permitted to throw upon his grantees a burden which, by an application of the principles of equity as to marshaling, can be made to be borne by the unsold | land. Watson v. Bane, 7 Md. 117; Sugden, Vendors, chap. 13, § 2, pl. 29, marg. p. 556. It is a general rule of equity that where the owner of land which is subject to any kind of lien or incumbrance, conveys part thereof to a purchaser, the burden of the lien must, as between such purchaser and the grantor, be borne by the remaining land of the latter. 2 Story, Eq. § 1233, a; Hartley v. O'Flaherty, Lloyd & Goold, t. Plunkett, 254, 261; Clowes v. Dickenson, 5 Johns. Ch. 235. As between the vendor and his grantees, this doctrine has never been questioned. Judge Story expressed doubts as to the propriety of applying it as among the grantees themselves, inclining to the view that they might all be treated as standing equitably on the same footing; in which doubt, however, he seems not to have been sustained by the authorities, which, with great uniformity, maintain that, as among several purchasers from the same vendor, in Subdivisions should generally be remitted to whose hands the entirety was subject to a subsequent proceedings in which those inter-charge, their respective lands must bear the ested only would be necessary parties. Oram v. Young, 3 Harr. (N. J.) 54. And see Gordon v. Pearson, 1 Mass. 323. A party whose share can be set off without any prejudice to the other owners ought not, against his will, to have his share sold because the other owners hold in shares so small that a sale of the residue becomes necessary. Haywood v. Judson, 4 Barb. 228; Lucas v. Peters, 45 Ind. 318. burden of the original lien in the inverse order of the alienations. Cooper v. Bigly, 13 Mich. 473; James v. Hubbard, 1 Paige, 233; Stuyvesant v. Hall, 2 Barb. Ch. 155; Cowden's Estate, 1 Pa. 267; Carpenter v. Koons, 20 Pa. 226; Kilborn v. Robbins, 8 Allen, 466; Nellons v. Truax, 6 Ohio St. 97; Brown v. Simons, 44 N. H. 475; 2 White & T. L. Cas. part 1, pp. 291, 296; Jenkins v. Freyer, 4 Paige, 52, 53; Hamilton v. Royse, 2 Sch. & Lef. 316, 328; Coote, Mort. 4th ed. 150. See Conrad v. Harrison, 3 Leigh, 532, 540. It remains to consider the equities existing between the purchasers of the lots sold by Doub v. Barnes, 4 Gill, 21, which was foundPhilip Hiss, and his devisees who have suc-ed on a case in 1 Leigh, is not inconsistent with ceeded him in the possession of the unsold resi- this doctrine, except perhaps in the case of judgdue. Equity requires that in a partition the ments. claimants who have made no improvements shall have their shares allotted to them out of the unimproved part of the land. The result of such a partition, by confirming the title of Philip Hiss to the improved part, is to perfect the title of his grantees acquired through his deeds. Freeman, Partition, §§ 509, 465, 207; Brown v. Bailey, 1 Met. 257; Varnum v. Abbot, 12 Mass. 474, 476-478; Nichols v. Smith, 22 Pick. 316: McKee v. Barley, 11 Gratt. 340; Cox v. McMullin, 14 Gratt. 82. The deed of a tenant in common conveying a parcel of the common land by metes and bounds, while void as against his cotenant, is valid and effectual as against the grantor, and all claiming under him. Robinett v. Preston, 2 Rob. (Va.) 277; De Witt v. Harvey, 4 Gray, 491; Cunningham v. Pattee, 99 Mass. 251; Holcomb v. Coryell, 3 Stock. 550; Primm v. Walker, 38 Mo. 97. The equity existing in favor of the grantees For the purposes of this case it is not necessary to determine whether Judge Story's view or the other is preferable. It is enough to rest upon the rule which he and the other authorities agree in accepting, that the vendor's remaining land must, at all events, first bear the burden, to the entire exoneration, if sufficient, of all the parcels which he has sold. Aldrich v. Cooper, 2 White & T. L. Cas. part 1, 4th ed. pp. 291, 293, et seq. The doctrine does not depend upon the presence of a covenant of warranty in the deed, although such a covenant may be of influence in showing the intent in a case otherwise doubtful, but exists independently of warranty. 2 White & T. L. Cas. part 1, pp. 296, 297. The principle is irrespective of the origin or nature of the incumbrance. Id. p. 296. Nor is it limited to mere incumbrances. "It can have no necessary dependence upon the character of the interest or title of the claimants; | of the whole, out of the unimproved property, it rests upon the intrinsic justice and morality would ratify and confirm the deeds and leases of the maxim that a party shall so exercise his made by Philip Hiss to third parties. own rights as not to do unnecessary injury to those of others. Agricultural Bank v. Pallen, 1 Freeman, Ch. 419, quoted in 2 White & T. L. Cas. part 1, p. 291. Messrs. S. T. Wallis and M. R. Walter, for P. Hanson Hiss, et al., appellants: A vendor, selling in good faith, is not responsible for the goodness of his title, beyond the extent of his covenants in the deed. Falconer v. Clark, 3 Md. Ch. 151; 7 Md. 177; Smith v. Chaney, 4 Md. Ch. 246; Harris v. Morris, 4 Md. Ch. 529. If a purchaser has taken a conveyance, and there be no fraud, he has no remedy, although evicted for want of title, except upon the covenants of his deed. Middlekauffv. Barrick, 4 Gill, 291. The purchaser's only right to relief from defects or incumbrances, whether at law or in equity, depends, in the absence of fraud, solely upon the covenants for title which he has received. When the deed contains no covenants, the purchaser is wholly without remedy; for the consideration was the mere transfer to him of the estate of the vendor, who was to be in no way responsible for the title; and when the deed is delivered to the purchaser, he has received the entire consideration for which he bargained, entirely irrespective of any future events; and the question of good or bad title is irrelevant. When the covenants are limited to the acts of the vendor, the consideration would seem to be the present transfer of his estate in the same condition as that in which he himself received it, and the future performance by himself and his heirs, when necessary of the undertaking, that the purchaser and those claiming under him shall not suffer from any of his or their acts. Id. 588. When a defect has been caused by anyone in the chain of title prior to the vendor, this can form no defense to the purchaser from payment of the purchase money, for the consideration between himself and this vendor is not affected. Id. 589. All covenants arising from implication of law are necessarily controlled or annulled by express covenants between the parties. When a party covenants for quiet enjoyment and possession against himself, and those claiming under him, he excludes the idea of a covenant against the world. Morris v. Harris, 9 Gill, 20-27. Mr. Sebastian Brown, for Thomas P. Stran et al., appellants: A partition between the devisees of Philip Hiss and the Worthington and Knapp heirs, which should give to the latter their full share Robinett v. Preston, 2 Rob. (Va.) 277; De Witt v. Harvey, 4 Gray, 491; Cunningham v. Pattee, 99 Mass. 251; Holcomb v. Coryell, 3 Stockton, Ch. 550; Primm v. Walker, 38 Mo. 97; McKee v. Barley, 11 Gratt. 346; Teal v. Woodworth, 3 Paige, 470. A lease or deed by one tenant in common to a stranger, of a portion of a joint estate, although voidable by the cotenants who do not join therein, is valid between the parties and against all persons, unless so avoided. Brown v. Bailey, 1 Met. 257; Cunningham v. Pattee, 99 Mass. 250; Compau v. Godfrey, 18 Mich. 36; Worthington v. Staunton, 16 W. Va. 235; Butler v. Roys, 25 Mich. 53; Hartford & S. Ore Co. v. Miller, 41 Conn. 132; Holcomb v. Coryell, 3 Stockton, Ch. 549-550; Freeman, Cotenancy $ 199, 207; Carroll v. Norwood, 1 Harr. & J. 100, 167. The devisees of Philip Hiss, therefore, cannot be permitted to assail the deeds and leases made by their testator; and consequently it would seem that they must submit to a partition which would give to their cotenants the unsold property in satisfaction of their share. When a cotenant has made improvements on a portion of the property, the partition will be so made as to allot him the land so improved, if this can be done without injury to the parties. This rule would be adopted if the improvements had been made by Hiss; and certainly his grantees, who paid him full value for the property, must receive at least like protection from the court. 1 Story, Eq. § 655; Lowvalle v. Menard, 1 Gilm. 45; Town v. Needham, 3 Paige, 553; Brookfield v. Williams, 1 Green, Ch. 345; Hart v. Hawkins, 3 Bibb, 510; Pope v. Whitehead, 68 N. C. 199; Drennen v. Walker, 21 Ark. 557; Seale v. Soto, 35 Cal. 104; 16 W. Va. 241; 18 Mich. 36; 52 Maine, 25; Freeman, Cotenancy, 465, 509. If, therefore, a partition can be so made of this property that the Worthington and Knapp heirs can receive their shares out of the unsold property, that course should be adopted; and the result would ratify and confirm all the deeds and leases made by Philip Hiss. A partition and not a sale should always be ordered where the property admits of partition without injury to the parties interested; and the court always inclines to a partition. Earle v. Turton, 26 Md. 34; Thruston v. Minke, 32 Md. 576; Balt. & O. R. R. Co. v. Trimble, 51 Md. 109; Ager v. Fairfax, 2 White & T. L. Cas. part 1, p. 916; Catlin v. Catlin, 60 Md. 577. If the property be sold and the proceeds received from the sales of that portion in possession of the devisees of Philip Hiss are sufficient (and they are doubly so) to satisfy the Worthington and Knapp heirs, reason and justice demand that they shall be satisfied out of those proceeds. The principle applied where a partition can be made should be equally applied where the property is indivisible, and cannot be sold. Otherwise, the mere fact that one lot, perhaps worth less than $1,000, being so situated that it, with other property, could not be divided without loss and injury, would deter |