who swears that Philip was to pay $200 in money for the lot on Muir street conveyed to him by his mother. The remaining testimony introduced by the appellants relates to casual conversations had with the appellee some time subsequent to the execution of the deed, in which she spoke of having given the property to her son; two of the witnesses stating that she said he had been kind to her, and that she owed him more than the lot was worth. They do not state that she admitted that she owed him any ascertained sum of money, and these vague and unsatisfactory colloquies are obviously suggestive of doubts in relation to the actual nature of the debt alluded to in statements so ambiguous and obscure. Instead of a pecuniary indebtedness, she may have had reference to a debt of gratitude for filial kindness and attention. It is clear that such proof is not admissible to contradict the recital in the deed." It was under such circumstances that the court said "that, when a sum of money is named as the consideration in the recital of a deed, it is not competent to adduce evidence ending to show that the real consideration was a gift from the grantor to the grantee." Now, it is apparent that the facts in these cases do not at all resemble the facts in the case at bar, and that the language of the court as applied to the facts in these cases has no application to the facts in this case. In McElderry's Case the attempt was made to prove a collateral agreement contradicting and adding to the terms of the mortgage. In Johnson's Case the plaintiff claimed that she did not intend to execute a deed, and that the consideration named therein was false and fraudulent, and that she had not received any consideration at all, and the defendants admitted that the consideration stated in the deed was false and had not been paid, but sought to establish as the consideration an agreement that the plaintiff should have a home with them on the property. And in Christopher's Case, where there does not appear to have been any receipt for the consideration in the deed, the defendants admitted that no money had been paid at the time the deed was executed, but alleged and attempted to prove that there was an agreement between the son and his mother that the deed should be given in consideration of moneys advanced and services rendered and necessaries furnished by him to her, which the court held he had failed to establish. In this case the deed recites that it was made in consideration of $8,000 paid in cash by the grantees before the delivery of the deed, and the receipt of which is further acknowledged in the deed, and the precise question is whether upon proof that the $8,000 was not paid these statements in the deed can be explained by parol evidence. This question, while it may be covered by the broad language used in the cases referred those cases. In the case of Elysville Co. v. Okisko, 1 Md. Ch. 392, the bill alleged that on the 20th of August, 1846, the complainant executed to the defendants a deed of certain property for the sum of $25,000; that the defendants had taken possession thereof, and occupied the same ever since; that, although an acknowledgment of the receipt of the purchase money was written on the deed, it had not been paid; and that the defendants were threatening to sell the property without regard to the rights of the plaintiffs. The bill prayed for an injunction restraining the defendants from selling, and that the property might be sold to satisfy the plaintiffs' claim. The answer denies that the purchase money was still due, and in explanation stated that in the month of July, 1845, the Elysville Manufacturing Company, consisting of five Messrs. Eley, the owners of the property in dispute, being in want of means to conduct their operations, agreed with certain merchants in Baltimore that, if the latter would join with them and contribute the sum of $25,000, the company would convey to the association thus formed the property, and, in consideration thereof, hold a like sum of $25,000 in the capital stock of the association thus formed; that the sum proposed was raised in pursuance of the agreement; that this association was afterwards incorporated by the name of the Okisko Company; that Elysville Manufacturing Company, by Thomas Eley, its president, subscribed for 250 shares of the capital stock, amounting to the sum of $25,000, and that his certificate for 250 shares was delivered to the complainants on the execution of said deed, and by them received as the true and only consideration therefor. The chancellor in disposing of this case said: "It is the undisputed law in this state that the receipt in a deed acknowledging the payment of the consideration money may be contradicted, that it is only prima facie proof, and is exposed to be either contradicted or explained by parol evidence, and in this respect constitutes an exception to the general rule, which protects written evidence from the influence of such testimony. Higdon v. Thomas. 1 Har. & G. 139; Wolfe v. Hauver, 1 Gill, 85. But, although the receipt in the deed acknowledging the receipt by the vendor of the consideration may be disproved by parol, and an action maintained by him for the purchase money on the production of such proof, still it is insisted that the opposite party, the vendee, is held to the proof of the consideration expressed; and that he will not be allowed to support the instrument by setting up a different consideration repugnant to that expressed. In the case of Betts v. Union Bank, 1 Har. & G. 175, 18 Am. Dec. 283, the Court of Appeals decided that, where a deed was impeached for fraud, the party to whom the fraud is imputed will not be permitted to prove any other con consideration offered to be proved in that it, the question is: Shall he be permitted to case was marriage, and the attempt was do so, if upon the evidence it is shewn that to set up marriage as the consideration in he has received, not in money, but in somelieu of the money consideration expressed; thing else of value, what at the time he' but this was decided to be inadmissible, the considered as an equivalent for the money? deed being impeached for fraud. The proof, Suppose in the case of Wolfe v. Hauver the if admitted, would have changed the deed defendant, the purchaser, could have shewn from one of bargain and sale to a covenant that he had paid, and the plaintiff had reto stand seised to the use of the grantee. ceived, as an equivalent for the $2.000 (the In the case of Union Bank v. Betts the consideration expressed in the deed) merdisproof of the consideration expressed had chandise or other property, and that such rendered the deed fraudulent and void as was the agreement of the parties at the time a bargain and sale, and, by admitting the the contract for the purchase was made, can parol proof offered, this void instrument it be possible that under such circumstances would have been re-established as an instru- the complainant could have been allowed to ment of a different character. In every sub-recover a judgment for the purchase money? sequent case decided by the Court of Appeals. If he could, where would be the defendant's the case of Bank v. Betts is explained redress for a wrong so monstrous and palin this way; that is, as having decided that, pable? If he could not defend himself at when a deed is rendered inoperative and law, because he could not in the face of void by disproving the consideration express- the deed prove any other than the payment ed in it, evidence of a different consideration of the moneyed consideration expressed, he' will not be received to set it up. Clagett & would be equally defenseless in equity, beHill v. Hall, 9 Gill & J. 91; Cole v. Albers cause the rules of evidence in regard to ex& Runge, 1 Gill, 423. But the question pre-plaining or varying or contradicting written sented in this case is of a different descrip- evidence are the same in both courts, and tion. This deed is not impeached for fraud. as in the case of Union Bank v. Betts and Cole v. Albers & Runge. The complainants in this case maintain the validity of the deed, and seek upon the allegation that the consideration money has not been paid, to enforce its payment by the assertion of the vendor's lien. And the question is whether in a court of equity he can be permitted to assert this lien, and compel payment in this way of the consideration expressed in the deed, if it appears by the evidence that he has been satisfied for the purchase money by receiving something else as an equivalent therefor. In the case of Wolfe v. Hauver, 1 Gill, 84, which was an action of assumpsit to recover the value of lands sold and conveyed, but not paid for, objection was made to the admissibility of parol evidence to disprove the acknowledgment in the deed; but the court admitted it upon the ground that such acknowledgment was only prima facie evidence, and the plaintiff, the vendor, ob- In the case of Wolfe v. Hauver, 1 Gill, tained the verdict and judgment. In that 84, the court said: "It is a familiar princicase as here the deed was not impeached ple that receipts acknowledging the payfor fraud, nor was the evidence of nonpay- ment of money may be explained or contrament offered to render it inoperative and void; dicted. The receipt of the purand the Court of Appeals say: "The introduc- chase money is no necessary part of the deed, tion of the evidence proposed to be offered as it would in every respect be as valid withneither changes nor affects any right trans- out it as with it." In the case of Robinet mitted in the property conveyed by the deed. v. Wilson, 8 Gill, 185, the court held that the It operates no change in the legal character of receipt in that case was never intended by the instrument, nor in any manner affects in- the parties to it to have the operation claimjuriously any part of the deed, as a conveyed by the defendant, and said that the un ance. The receipt of the purchase money is no necessary part of the deed, as it would in every respect be as valid without it as with it.' The deed then being valid, and passing the legal title, and the bargainor therein not impeaching it as fraudulent, but claiming the aid of this court to enforce his lien as vendor to recover the purchase money expressed in thus the court must unavoidably be the instrument in inflicting the grossest injustice." If in the case now under examination the consideration of the deed from the complainant to the defendant, instead of being, as is alleged, $25,000 of stock in the Okisko Company, had been the conveyance by the defendant to the complainant of real estate of the same value, and each deed had been upon a money consideration expressed, is it possible that upon a bill filed by one of the grantors, claiming the enforcement of the vendor's lien, this court must have given him' a decree for a sale of the property upon proof that the moneyed consideration expressed had not been paid? And that the other vendor must in like manner proceed upon his equitable lien to recover his money, which in case of any serious deterioration of the property, from any cause, might be im. possible." This case was affirmed on appeain 5 Md. 152. * questioned doctrine of this court is "that receipts are not regarded as written, conclusive evidence, but may be explained or contradicted by oral testimony." In the case of Shepherd v. Bevin et al., 9 Gill, 36, the court said: "The receipt produced in evidence bears date on the 18th of February, 1843. It professes to be a receipt signed by . pressed to be a certain sum of money paid. was a specified quantity of iron, and said that according to the American cases the only effect of a consideration clause in a deed is to estop the grantor from alleging that the deed was executed without consideration, and that for every other purpose it is open to explanation and may be varied by parol proof. In a note to that case-Lawyer's Edition-where a great number of cases are cited, it is stated that: "The consideration clause in a deed may be contradicted or explained, except for the purpose of de Joseph Shepherd from Mrs. Mary Shepherd, the conveyance in that case, which was exhis guardian, for the sum of $561.64, being in full for his distributive share of his father's, the late John Shepherd's, personal estate, witnessed before a justice of the peace, and acknowledged before him by Joseph to be his act and deed for the purpose therein mentioned, according to the act of assembly, etc., and testimony was further adduced by the appellant to prove that the money expressed in the receipt was never paid, but retained by the mother in pursuance of the agreement, as part of the contract upon which she was to execute to Joseph a conveyance of the land. To this tes-feating the deed." In the case of Baird v. timony the infant defendants excepted on Baird, 145 N. Y. 659, 40 N. E. 222, 28 L. R. the ground that it was offered to vary, ex- A. 375, a father deeded property to his two plain, or contradict the written instrument sons, and took a mortgage from each of of the party, and was therefore illegal and them. The mother of the two mortgagors inadmissible. We are of opinion that the ob- died and their father married again, and, jection is not well taken, and that the evi- after his death, his widow brought actions dence is clearly admissible to explain the against the mortgagors to foreclose the mortintention of the parties to the paper. * * gages. It appeared from the evidence conAny paper that purports to be a receipt orsisting in part of admissions of the father acknowledgment for the payment of money that he took the mortgages because he fearmay be explained." In the case of Homer ed his sons might lose the property through v. Grosholz, 38 Md. 520, the court said: "It speculations or otherwise, but that no actual has been settled by various decisions in this debt was intended to be secured. Counsel state that the recital of the payment of pur- for the plaintiff insisted that such evidence chase money in a deed or of the receipt of was not admissible to defeat the mortgage, the mortgage debt in a release of mortgage but the court held otherwise, and said: is not conclusive upon the parties, but is "There is no reason that we can perceive for always open to explanation." In this state giving to these instruments any greater force it has been repeatedly held that no matter or effect than was contemplated by the parhow absolute a conveyance may be on its ties when they were executed and delivered. face, if the intention be to take a security * for a debt or for money lent, the transaction will be regarded as a mortgage and will be treated as such, and that parol evidence is admissible to show that an absolute conveyance was intended as a mortgage. Artz v. Grove, 21 Md. 456; Brown v. Reilly, 72 Md. 489, 20 Atl. 239; Bank of Westminster v. Whyte, 1 Md. Ch. 536; Baugher v. Merryman, 32 Md. 185. In the case of Shugers v. Shugers, 105 Md. 336, 66 Atl. 273, the bill was filed to compel the grantors in a deed to their father to execute a new deed in the place of the one that had been lost or destroyed. The deed recited a consideration | of $2,000, which, the proof showed, had never been paid, and was not intended to be paid. This court affirmed the decree appointing a trustee to execute a new deed for the property, and held that, as it approved that the consideration of $2,000 mentioned in the deed was not intended to be paid, the grantors were not entitled to a vendor's lien. In the case of M'Crea v. Purmont et al., 16 Wend. (N. Y.) 460, 30 Am. Dec. 103, supra, the court after reviewing at length the decisions in England and America, including the decisions in this state, held that the clause in a deed acknowledging the receipt of a certain sum as the consideration for the conveyance was open to explanation by parol proof, and that parol evidence was ad * * * * * Nor do we perceive any good rea son why the real purpose and true consideration and object of the mortgages should not be made to appear when the aid of a court of equity is invoked for their enforcement. The consideration of an instrument is always open to inquiry, and the party may show that the design and object of the agreement is different from what the language, if alone considered, would indicate. Parol evidence may also be given to show that a writing purporting to be a contract or obligation was not in fact intended or delivered as such by the parties. Grierson v. Mason, 60 N. Y. 394. So a conveyance absolute in form may be shown as against the heir at law of the grantee to have been made in trust for the benefit of a partnership firm, of which the grantee was a member, and so held by him in trust for the firm. 665." Rank v. Grote, 110 N. Y. 12, 17 N. E. In the case of Ferry v. Stephens, 66 N. Y. 321, Stephens agreed to sell certain property to his sister for $1,100 and she signed a contract to pay the amount. After Stephens' death, she brought suit for specific performance of the contract. The evidence showed that at the time of the making of the contract it was understood by the parties that it was Stephens' purpose to make a gift of the property to his sister, and that to that end he indorsed on the contract a ought not to be sanctioned in a court of justice. We must therefore say, as was said. in Shugers v. Shugers, supra, that, as the intention of the parties to the deed was that the consideration was not to be paid, the appellants are not entitled to a vendor's lien. We agree with the court below as to the admissibility of so much of the testimony of Mr. Coblentz as related to statements made by the deceased in the presence of Otho J., Shank, one of the grantees in the deed and defendants in this case. 1 Greenleaf on Evi that no payment was ever made, and the | them, would impose upon the latter obligacourt held that the primary intention of tions they never intended to assume, and Stephens was to give his sister the land, and "that the receipt was intended to operate as a forgiving or satisfaction of the plaintiff's obligation under the contract, so as to leave the right of the plaintiff to conveyance in force as if the debt had been paid." In Fassett's Case, 167 Pa. 448, 31 Atl. 686, it was held that a receipt could be shown to have been intended by a widow as a gift to her son of all arrearages of dower, and in a note to section 2433 of 4 Wigmore on Evidence the case of Velten v. Carmack, | 23 Or. 282, 31 Pac. 658, 20 L. R. A. 101, is dence (16th Ed.) § 245; 4 Wigmore on Evicited as holding that the consideration in a dence, §§ 2311, 2312; Hebbard v. Haughian, deed to a married woman could be shown to 70 N. Y. 54; Hummel v. Kistner, 182 Pa. As Otho J. Shank, one have been a gift to her by the grantor. It is 216, 37 Atl. 815. of the defendants in the case, was called by hardly necessary to say that this is not a case where the deed is impeached for fraud, the plaintiffs and examined as to the conand the defendant attempts to set up a dif-versation had with his father on their way ferent consideration from that expressed into Frederick to have the deed prepared, the the deed, or where, as in Lawson v. Mul- defendants were entitled to cross-examine linix, 104 Md. 150, 64 Atl. 938, the defend-him and show the whole conversation. Turant, in order to make her deed effective, endeavors to show that it was based on a valuable consideration when the deed recites a good consideration, and to thereby give it a force and effect not contemplated by the par ties. Without further prolonging this opinion and without meaning to adopt the decisions of the other courts referred to to the full extent to which they go, it would seem clear upon principle and authority that the defendants had the right to show that when their father inserted in the deed the con sideration of $8,000 paid by the grantees at and before the delivery of the deed, when, in fact, no part of it had been paid, he intended thereby to evidence the understanding of the grantor and grantees that it was not intended to be paid. The effect of such evidence is not to vary or contradict the provisions of the deed, but to explain what would otherwise, on proof that the consideration had not been paid, be a contradiction in its terms. As it was understood by the parties to the deed that the consideration was not to be paid, and receipt of it was therefore acknowledged in the deed, the grantor might have for some reason inserted in the deed as the consideration a very much larger sum than the property was worth, and, according to the contention of the appellants, upon proof that it had not been paid, the grantees would be bound to make good the amount, notwithstanding they never assumed to pay anything. There can be no good reason in law or equity for ignoring the real intention of the parties, and enforcing a contract they never made, and courts have consistently avoided doing so. To permit the plaintiffs to contradict the recitals in the deed, and then deny the grantees the right to explain ner v. Jenkins, 1 Har. & G. 161; Smith v. Wood, 31 Md. 293; 3 Wigmore on Ev. § 2115. It is not necessary to pass on the other exceptions to the evidence, further than to say that the defendants were not authorized to testify to statements made by the deceased. under section 3 of article 35 of the Code, unless called and examined by the plaintiff's in regard thereto. The decree in this case for the reasons we have stated must be reversed, and the bill must be dismissed. Decree reversed and bill dismissed, the appellees to pay the costs above and below. (110 Md. 608) POSTAL TELEGRAPH-CABLE CO. v. (Court of Appeals of Maryland. June 29, 1909.) DIRECTORY PROVISIONS. Const. art. 3, § 29, providing that the style of all laws shall be "Be it enacted by the Genand hence Acts 1908, p. 72, c. 280, entitled "An eral Assembly of Maryland," is directory only, act-telegraph companies shall show conspicu ously on each and every telegram the time it was filed for transmission, and the time it was received at its destination," and proceeding, "Be it enacted by the people of the state of Maryland, represented in the General Assembly," was therefor not invalid for failure to comply therewith. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 44; Dec. Dig. § 40.*] 2. TELEGRAPHS AND TELEPHONES (§ 29*) → STATUTORY REGULATIONS-CONSTRUCTION. Acts 1908, p. 72, c. 280, requiring all tele graph companies transmitting messages in the state to conspicuously show on each telegram delivered the time it was filed for transmission and the time it was received, and making a violation thereof punishable by fine, is mandatory and cannot be waived by the sender so as to re For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes lieve the telegraph company from prosecution by [livered. The second alleges that it did delivthe state. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 15; Dec. Dig. 8 29.*] 3. TELEGRAPHS AND TELEPHONES (§ 79*) — STATUTORY REGULATIONS-OFFENSES. Acts 1908, p. 72, c. 280, requires all telegraph companies doing business within the state to conspicuously show on each telegram delivered the time it was filed for transmission and the time it was received at the office of destination, and makes a violation punishable by fine recoverable at the instance of the state. Held, that telegraph companies may not shift the expense of complying with such provision to the sender of the message, and that it is therefore no defense to a prosecution for violating such act that the sender refuses to pay for the extra words necessary therefor. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 22; Dec. Dig. § 79.*] 4. COMMERCE (§ 28*)—INTERSTATE COMMERCE— STATE STATUTES TELEGRAPH REGULATIONS. Communication by telegram constitutes "commerce" within the regulation of federal authority in so far as it involves transmission of messages from one state to another, but is subject also to state regulation in so far as it concerns transmission of messages wholly intra state. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 22; Dec. Dig. § 28.* For other definitions, see Words and Phrases, vol. 2, pp. 1296, 1297; vol. 8, pp. 7606, 7607.] 5. COMMERCE (8 59*) - TELEGRAMS - INTRASTATE MESSAGES REGULATIONS-STATUTE. Acts 1908, p. 72, c. 280, requiring telegraph companies engaged in transmitting communications by telegraph in Maryland to show on each and every message delivered the time filed for transmission and the time received at the delivery office, is applicable only to intrastate messages and is therefor not objectionable as an interference with interstate commerce, but is a proper exercise of police power. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 87; Dec. Dig. § 59.*] Briscoe, J., dissenting in part. Appeal from Criminal Court of Baltimore City; James P. Gorter, Judge. The Postal Telegraph-Cable Company was convicted of delivering a telegram on which the time of filing at the place of origin and the time received at destination did not appear, and it appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ. Howard Bryant, for appellant. Eugene O'Dunne and Isaac Lobe Straus, Atty. Gen., for the State. er at Baltimore a telegram dated at Annapolis, on which the time of filing at the place of origin and the time it was received at its destination did not appear under the captions "Time filed," and "Time received." The third alleges that it did fail to show on a telegram dated Annapolis, Md., delivered in Baltimore, the time it was filed at Annapolis for transmission and the time it was received at the office of the company from which it was delivered. And the fourth alleges that it failed to show on the telegram the time of filing it at the place of origin and the time it was received at its destination under the captions "Time filed" and "Time received." A demurrer to the indictment and to each count was overruled, and the company then filed two special pleas to each count. The first plea alleges that the sender of the message notified the company in writing that he would not pay, and he refused to pay, for the extra words to show upon the message the time it was filed for transmission at Annapolis; and, after said notification and refusal to pay, the sender authorized and directed in writing the company not to send with said message the time it was filed at Annapolis for transmission to Baltimore, and he waived the same in writing. The second plea alleges: (1) That the sender refused to pay for the transmission with said message the extra words, to wit. "Time said message was filed for transmission at Annapolis, Md.," which extra words exceed the 10 words in the body of said message, and the law does not require the company to send or transmit said extra words without charge; and (2) that the sender of the message notified the company in writing that he Idid not want or desire the "Time filed" for transmission sent with the message to Baltimore, and he waived the same in writing. The pleas to the other counts are substantially the same. A demurrer to each of the pleas was sustained, and the case was then submitted to the court on a plea of not guilty. The court found the traverser guilty and imposed a minimum fine of $10, from which judgment this appeal was taken. A number of defenses have been urged, and it is claimed that the law is in conflict with the Constitution of this state and with that of the United States. It is also contended that the construction placed upon the statute by the state is not justified. BOYD, C. J. The appellant was convicted 1. It is urged that the act is unconstituof violating chapter 280, p. 72, Acts 1908. tional and void because in conflict with the There are four counts in the indictment. clause in the twenty-ninth section of article The first alleges that the company did deliv- 3 of the Maryland Constitution, which proer at the city of Baltimore a telegram dated vides that: "The style of all laws of this at Annapolis, Md., to one W. H. Hellewell, state shall be, 'Be it enacted by the General without showing on the said telegram the Assembly of Maryland.'" The act was evitime it was filed at Annapolis for transmis- dently drawn by some one not familiar with sion and the time it was received by the the form in use in this state. The title is company at its office from which it was de- | "An act-telegraph companies shall show |