for." It must not be forgotten, too, that Nicodemus swears he saw Hagan pay money (how much, he did not know) to Eakle. In conclusion, we advert to a fact which it is difficult to reconcile with the nonpayment of the mortgage. For nearly 12 years no steps were taken to enforce its payment, although a decree was in existence all the time under which the property could have been sold. As an excuse for this delay, it was suggested that Mr. Eakle did not wish to sell his sister's property; but it must be remembered that he outlived her nearly 4 years, during which time he never took any steps to enforce the payment of his mortgage. After his death the claim is pressed. Each side accuses the other of delay and laches. Whatever may be said as to the appellant-whether guilty of laches or notcertainly the appellee cannot be so charged. He is and has always been in possession of the mortgaged property, and there was no reason why he should take any action so long as his possession remained undisturbed. 18 Am. & Eng. Encyl. 124, etc. Upon the whole case, although it would have been more satisfactory to have had the testimony of the original parties to the mortgage as to the alleged settlement and payment thereof, we are constrained, as was the learned judge below, to hold that the testimony must be accepted as establishing the payment of the , mortgage debt, and hence the decree appealed from will be affirmed.

Decree affirmed, with costs.

(101 Md. 179)

TKAC v. MARYLAND STEEL CO. (Court of Appeals of Maryland. March 24, 1905.)

MASTER AND SERVANT-INJURIES TO SERVANT

CONTRIBUTORY NEGLIGENCE.

Plaintiff was injured by being struck by a cross-rail, on a platform attached to one of defendant's electric ore cars, while he was walking in a space between the car track and the side of defendant's orehouse, in which he had been at work. This space varied in width from 1 to 42 inches, and plaintiff was walking therein in violation of a rule prohibiting employés to use such space, though he could have left the building safely by three other exits known to him. Held, that plaintiff was guilty of contributory negligence as a matter of law.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 703, 745, 759775.]

Appeal from Baltimore City Court; Henry D. Harlan, Judge.

Action by John Tkac against the Maryland Steel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

James Fluegel, for appellant. Alexander Preston, for appellee.

BRISCOE, J. The appellant brought suit on the 19th day of March, 1903, in the circuit court of Baltimore City, against the appellee, to recover damages for injuries sustained by him, while in its employ, by reason of the alleged negligence of the defendant company. The questions in the case are presented upon a single exception, and that is to the action of the court in granting the defendant's third prayer, and in overruling a special exception thereto. The third prayer reads as follows: "That the undisputed evidence in this case shows that the risk and danger of walking along the place where the plaintiff was injured was obvious and known to the plaintiff, or ought by the exercise of ordinary care to have been known to be unsafe and dangerous, and the plaintiff is not entitled to recover under the pleadings in the case." The case was submitted at the close of the plaintiff's testimony, and, the judgment being for the defendant, the plaintiff has appealed.

We discover no error in the ruling of the court upon the prayer as granted, or in overruling the special exception to the prayer. There is no evidence in the record that would have justified a verdict or supported a judgment for the plaintiff, and the court below was therefore clearly right in withdrawing the case from the jury.

The facts, briefly stated, are these: The appellee is a corporation, owning and operating a steel plant at Sparrows Point, Baltimore county. The appellant was a laborer employed in the steelworks of the appellee. On July 6, 1902, he was struck by a motor car, and injured, while leaving what is called the "orehouse," where he had been at work. The building is stated to be six to twelve hundred feet long, and contained bins into which the ore that is converted into steel is dumped into the cars. The ore is brought into the house by means of electric cars located on the west side of the building and running its entire length. There were crossrails on the platforms of the cars which projected about nine inches, leaving a narrow space between the wall and the nearest rail of the car varying from 1 inch to 42 inches. The plaintiff was injured while walking along the space between the wall and the track, having been struck by a cross-rail on a platform attached to the electric car. The basis of the plaintiff's suit is that the injury was due to the negligence of the defendant in maintaining an unsafe and dangerous path of ingress and egress, between the wall and the car track, from the place he worked.

The principles controlling such cases have been so often considered by this court that it seems unnecessary to discuss them here. In Wood v. Heiges, 83 Md, 268, 34 Atl. 872, this court, after reviewing the cases upon the subject, said: "If a servant has knowledge of the circumstances under which the employer carries on his business, and chooses to accept

the employment, or continue in it, he assumes such risks incident to the discharge of his duties as are open or obvious. In such cases it is not a question whether the place prepared for him to occupy, and which he assents to accept, might with reasonable care have been made more safe. His assent dispenses with the performance on the part of the master of the duty to make it so. the case at bar, according to the undisputed testimony, the plaintiff directly contributed to the accident and injury which he sustained by his own want of care and caution. The alleged path which he sought as an exit from the building was not maintained as a road, path, or exit by the appellee company, and was not intended to be used as such. There were three other exits from the building which were known to him, and which he could have taken with safety. The witness Stenzy testified that he had examined the path; in some places it was 21⁄2 feet, and in others about 18 inches, in width between the track and the wall, and there was a danger sign near the path which reads: "Danger! Keep off This Track. Riding on Motor Cars or Trucks Positively Forbidden. Employees Disobeying This Rule will be Discharged." He further stated that, at the place where the width of the path was only 18 inches, there was not room enough for a man to walk safely; that the place was slippery, and there was nothing to prevent one's slipping within reach of the cross-tracks on the platform of the electric car. There was testimony to the effect that the space between the wall and the track was an unsafe and a dangerous place; that at times it was obstructed by ore, stones, boxes, and logs; that the dangerous character of the place was open and obvious, and the plaintiff could not fail to see and ascertain its condition. Upon this state of case we think it is certain, both upon reason and authority, that the appellant contributed to his own misfortune, and is not entitled to maintain this action.

It follows from what has been said there was no error in granting the prayer, or in overruling the plaintiff's special exception to the defendant's prayer. The judgment will be affirmed, with costs.

Judgment affirmed, with costs.

(101 Md. 206)

HEWITT v. PARSLEY et al. (Court of Appeals of Maryland. April 20,

1905.)

VENDOR AND PURCHASER-SPECIFIC PERFORM

ANCE-VENDOR'S TITLE.

Acts 1896, p. 560, c. 310, relative to taxation and sales for taxes by a municipal corporation, requires that after the sale, and payment of taxes, penalties and costs, the treasurer shall deliver to the purchaser a certificate of purchase, and the mayor give a deed, unless the property shall be redeemed within one year from the day of sale, and there is no record of

against Frank L. Hewitt. From a decree for complainants, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Edward C. Peter, for appellant. Charles W. Prettyman, for appellees.

PAGE, J. The bill in this case was filed by the appellee to compel the appellant to specifically perform a contract for the purchase of a certain lot in Tokoma Park. The appellant refused to do so, because, he avers, the appellee cannot convey a good title. The agreed statement of facts shows that the lot in question was owned in 1890 by Ellen J. Foot; that in June, 1898, the town council of Takoma Park, a municipal corporation created by the act of 1896, p. 560, c. 310, by ordinance levied taxes for the year ending July 1, 1898; that the said lot was assessed in the name of Ellen Foot to pay taxes amounting to $1.41, and subsequently, the said taxes not having been paid, the lot was sold, in accordance with the requirements of said act, to one Parsley, who received from the treasurer of the town a certificate of purchase, which was delivered by him to a certain Ray, and by him to Estella Parsley; and that the appellees have no other title than such as Estella has acquired by virtue of said tax sale and the deed from the town of Takoma Park.

The appellant contends that so much of the act of 1896, p. 560, c. 310, as relates to the assessment and sale of real estate for taxes, is unconstitutional, for the following reasons: First, the act fails to provide for any reasonable notice to the property owner at any state of the proceeding by which it is proposed to divest him of his property; and, second, in that the mode and manner of the sale provided by the act is of such a character as practically to amount to a taking of the property of one without due process of law and giving it to another.

These specific objections it will not be necessary to consider, in the view the court takes of the case. The bill was filed by the appellees for the specific performance of a contract of sale of certain real property. The title of the appellees is derived from a sale for taxes, made in accordance with the provisions of the act of assembly already mentioned. The taxes for the nonpayment of which the property was sold were levied pon a lot assessed to one Ellen J. Foot as her property, and sold as such. There is no provision in the act requiring sales made by

the collector for the nonpayment of taxes to be reported to and confirmed by the circuit court or other tribunal or person having authority to hear objections to the sale and confirm or reject it, and no such report was in fact ever made. The act requires no more to be done than that, after the sale is made and the taxes, penalties, and costs have been paid, the treasurer shall sign and deliver to the purchaser a certificate of purchase, and the mayor to give a deed, unless the property shall be redeemed within one year from the day of sale. The entire title which the appellee can deliver, therefore, is that to be conferred by the certificate of the treasurer and the deed of the mayor, and there is no record of the proceedings of the tax sale except such as may be contained in this deed. Is the appellee, under these circumstances, in a position to convey to the appellant such a title as a court of equity should compel the appellant to accept? It is clear that neither the certificate nor the deed is sufficient, as against a person otherwise holding a good title, to maintain a fee-simple title. To do that successfully, it would be requisite for the party claiming under the collector to show affirmatively, aliunde the contents of these papers, that all the proceedings of the collector were regular and in substantial conformity to the statute under which the sale was made. In Polk v. Rose, 25 Md. 160, 89 Am. Dec. 773, it was said in reference to such sales that "every act, the performance of which is made a condition precedent to the validity of the acts" of the officers, must be shown affirmatively; and "the recitals in a tax deed are not evidence against the owner of the property, but the facts must be established by proof aliunde." Had the act of assembly provided for a ratification of the sale, and some competent tribunal, after proper procedure, had after proper proceedings confirmed it, the purchaser would have been relieved of the "onus of proving in the first instance the regularity of the proceedings." Such a confirmation would establish for the purchaser a prima facie case, but would leave it open for the party in possession "to offer proof of the irregularity of the proceedings of the collector, and to assail the

title of the purchaser by proving that the provisions of the law have not been complied with." Guisebert v. Etchison, 51 Md. 486. Here there has been no order of ratification, and no legal provision for it, and therefore the deed of the mayor would not present even a prima facie title, and the appellee cannot therefore support his title until it is made to appear affirmatively, by proof aliunde the deed, that all the provisions of the statute have been strictly complied with. Steuart v. Meyer, 54 Md. 454. To compel the appellant to accept a title of this kind would subject him to serious risks of loss and inconvenience, presumably not contemplated by the contract of the parties, and not within the rule as to "marketable titles" heretofore imposed by the rules and practice of this court. In Gill v. Wells, 59 Md. 492, this court cited approvingly the following passage from Dobbs v. Norcross, 24 N. J. Eq. 327: "Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoying if not successful suits be brought against him, and probably take from him or his representatives land upon which money was invested. He should have a title which shall enable him not only to hold his land, but to hold it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value."

The learned judge below in his opinion remarks that the lot in question "sold for a very small price," and that the owner has made no attempt to "redeem the property or to avoid the sale." In Polk v. Rose, supra, this court said, at tax sales "it is notorious that the amount paid by purchasers is uniformly trifling in comparison with the value of the property sold." Under these circumstances, it is not unreasonable for the appellant to apprehend that, were be compelled to accept this lot, he might find himself unable to hold it in peace, or, if he so desired, to secure a purchaser to take it off his hands. For these reasons, the decree will be reversed and the bill dismissed.

Decree reversed, and bill dismissed; the appellee to pay the costs.

(101 Md. 138)

REED v. REED et al.

(Court of Appeals of Maryland. March 23, 1905.)

UNDUE INFLUENCE DEEDS SETTING ASIDE CONFIDENTIAL RELATIONS-BURDEN OF PROOF -SUFFICIENCY OF EVIDENCE.

1. A gift from a mother to her eldest son, who at the time is acting as her agent in attending to her business generally, is prima facie void; and the burden is on him, in an action by her to set aside the same as procured through the exercise of undue influence, to establish that it was the free, voluntary, unbiased act of the grantor.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gifts, § 86.]

2. Evidence examined, and held insufficient to show that a gift deed from a mother to her eldest son was obtained by the exercise of undue influence.

Appeal from Circuit Court, Kent County, in Equity; James A. Pearce, William R. Martin, and Edwin H. Brown, Judges.

Action by Frances P. Reed against S. Amos Reed and others. Decree dismissing the bill, and plaintiff appeals. Affirmed.

The following is the opinion of the court below:

"This suit was instituted for the purpose of having set aside a deed from the plaintiff to the defendant executed on the 10th day of October, A. D. 1902, on the ground that the same was obtained by undue influence and fraud. In cases of this character proceedings are not often taken during the lifetime of the grantor, but generally after his death, by those claiming to be in interest. Here the grantor is still living, and we have the benefit of her evidence, as well as that of all of the parties who had anything to do with the transaction. It is well that it is so, for she should be able to state the whole influence upon her, and not leave anything to the imagination, as is not infrequently the case where the grantor is dead. The grantor in the deed undertakes, after reserving to herself a life estate, to give the farm therein described to the grantee for his life, with remainder to his children; he and they being, respectively, her son and grandchildren. It was conceded in the argument that, in addition to being her son, the grantee, S. Amos Reed, was such an agent of the grantor, Frances P. Reed, as would establish the condition of confidential relations between them. The concession eliminates from our consideration much of the evidence taken in this case. This one presents some peculiarities, different from the usual facts ordinarily alleged and proved in cases of this character. We will endeavor not to extend this opinion by any unnecessary consideration of the evidence, or of the differences between the members of this inharmonious family-especially those which have arisen since the date of the deed, and which could have no possible effect upon its execution or the causes which led up to it, but which may

be the very natural feelings of disappointment that follows it.

"George R. Reed, of Kent county, died in August, A. D. 1897, leaving a large real estate, consisting of several farms, estimated to be worth about twenty-seven thousand dollars, and leaving surviving him a widow and seven children. His widow, who is the plaintiff in this case, was his sole legatee and devisee, and thereby became possessed of five farms. Shortly after the death of Mr. Reed, all of the children who had not already done so left home. The daughters married, and the sons sought and secured employment elsewhere- some out of the state, and all some distance from their mother. Amos was the eldest child, and was then renting the farm known as the 'Wroth Farm,' a few miles distant from the home farm, on which Mrs. Reed lived. When the others all left, Amos, at the solicitation of his mother, moved to the home place, occupying a small house thereon, a short distance from his mother's residence, in order, as she says, to be near her, and undertook to attend to her business for her, which she also says he did 'pretty well' until October 10, 1902, when this deed was executed. On the 9th of October of that year Mrs. Reed received an anonymous letter advising her that her daughter, Mrs. Jones, had lost her divorce suit, and suggested that she might be sued for slander of her son-in-law, against whom she had talked and testified, and advising her to convey away her property to her children at once. With this she repaired to her son Amos, who read it, and said he knew nothing of it, and did not know how to advise her, but would take her to town next morning to consult her lawyer, Mr. Beck, and accordingly they sought him for advice. He read the letter, gave his opinion of it, and also told her that, in his opinion, the son-in-law would never undertake to sue her, and, if he did, a conveyance for the purpose of defeating such a suit would amount to nothing; and he declined to draw the deed which she requested, because it would strip her of all of her property, and advised her that a will would accomplish her purpose, if she desired to dispose of her property after her death amongst her children. Mr. Beck was her adviser, whom she not only consulted then, but had been consulting ever since the death of her husband. Thus far all practically agree, but now comes the parting of the ways. The plaintiff alleges in her complaint and testifies that after she had shown the letter to Mr. Beck, and had been told about the will, she and her son Amos repaired to the private office of Mr. Beck and had a conversation, and, after returning, Mr. Beck, without explanation, suggestion, or authority, began to prepare the deed now in controversy, and that she signed it without knowing or understanding its contents, and that, she was so excited and nervous from the effects of that

letter, she would have signed anything they presented to her, and further stated that on her way home that night she was dissatisfied with what she had done, and asked Amos to explain it to her, which he declined to do because it was so dark he was afraid his horse would fall. Mr. Reed, on the other hand, alleges and testifies that his mother, time and again, prior to this meeting, told him this farm was to be his, both because he had stuck by her, and because his father had expressed the desire that he should have it; that he made no suggestion about the matter, but that she herself had done so on that occasion; that she furnished the data for its preparation, including the names of his children; and that it was her free and unbiased act, executed without solicitation or suggestion from him or on his behalf.

"The law governing cases of this character has been laid down by our appellate court in a great number of instances, and it has been consistently maintained from the case of Brooke v. Berry, 2 Gill, 83, to Brown v. Mercantile Deposit & Trust Company, 87 Md. 377, 40 Atl. 256, that a gift obtained by any person standing in a confidential relation to the donor is prima facie void, and the burden is thrown to the donee to establish to the satisfaction of the court that it was the free, voluntary, and unbiased act of the donor. This means, however, that, if it was the free and voluntary act of the donor, a gift deed is as good as any other, and must be measured by the same standard. It won't do to make such a conveyance, and, because the grantor should subsequently regret it, to come in and ask the court to undo the act so deliberately done. Let the grantee once discharge the burden imposed upon him, and overcome the prima facie case; the court would never strike down the deed either to gratify the caprice of the grantor, or because subsequently thereto the relations of the parties changed. But even to this general rule of law applicable to confidential relations there is a limitation, which limitation was first distinctly enunciated in the case of Todd v. Grove, 33 Md. 192. Conceding the existence of confidential relations between the parties to a deed, the reason of the rule making it prima facie void is that, for the common security of all mankind, gifts procured by agents, and purchases made by them from their principals, should be scrutinized with a close and vigilant suspicion, and thus prevent abuse of confidence and the acquisition of unreasonable gifts and advantages. In such cases entire good faith and the full disclosure of all the facts and circumstances are required, as well as an absence of undue influence, advantage, or imposition. All of this assumes that the deed is the result of undue influence upon or dominion over the grantor by the grantee, which is usually accomplished by secret and stealthy means, but a different rule obtains if it can be shown that the person by whom

2

the benefits have been conferred had competent and independent advice in conferring them. This simply means that the party attempted to be affected and deceived has shaken off the shackles of dominion, and such competent and independent advice rebuts the presumption arising from the mere fact of confidential relations.

"Plaintiff's counsel, in argument, laid great stress upon the point that, but for the receipt of the anonymous letter, this deed would not have been executed; that, as the letter was a fraud, the defendant would not be permitted to enjoy the fruits of it, though he had nothing to do with it. It does not appear in the evidence that Amos Reed had anything to do with sending this letter, or even had any knowledge of it. Nor does it appear to us that the letter is the cause of the execution of the deed. The deed was the sequence of the letter, but not necessarily caused by it. The visit to Mr. Beck was certainly the result of the receipt of the letter, and it is reasonably certain that Mrs. Reed went to Chestertown for the purpose of conveying away all of her property, as she apprehended her son-in-law was after it. But it is also apparent that after she consulted her attorney she did not do what she intended to do. Her fears must needs have been quieted by him, for she continued to hold all four of the other farms, and retained a life estate in the one in controversy. We must conclude from that that the deadly influence of the upas letter had passed from her, and then we look for some other motive for her act. Do we find it? If the testimony of Amos Reed is to be believed, we do, for he says his mother directed Mr. Beck to draw this deed, and gave as her reason therefor that his father wanted him to have this farm, and, come what may, she wanted it conveyed to him. This does not seem to have been an inspiration of the moment, but an intention which had existed for some time in her mind. It was shown by all of the witnesses on that point that the Wroth farm was the most valuable one left by George R. Reed, and that it was in the tenancy of Amos Reed at the time of his father's death. Shortly thereafter Amos declares that his mother urged upon him to leave the more desirable farm to go near and look after her, and told him even that long ago that he would never have to move again, as this was to be his farm. We are

not unmindful of the fact that Mrs. Reed contradicts this, as she does every other witness on this point, yet the witnesses Younger, Frank L. Reed, S. Amos Reed, Jr., and Cummings all positively say that Mrs. Reed frequently told Amos that the farm was to be his, and that it was his father's wish that he should have it. In addition to that, Mr. Crawford's evidence tends to confirm them, for he said that Mrs. Reed told him that Amos was the only one of the children who stuck by her, and she would stick by