right angles. The ground in this angle, though on the right of way of the railroad, had been paved by the city and used for traffic. The defendant erected a metal awning over a portion of the ground. The railroad company then sued to cancel any claim of ownership of the defendant in its right of way. In reversing a decree in favor of the defendant, the court said: "It appears from this recital of the decree that the chancellor's view was that, inasmuch as the city had acquired an easement by user, it had power to permit the awning to be placed upon the said property. The law is that, to acquire title to land by adverse possession, the possession must not only continue for the statutory period, but it must be exclusive and under claim of right. The proof does not show that the railroad was excluded from this property at all by the city. The railroad was constantly in use of its tracks, and using the property for the purposes for which it was acquired, and the facts show that both the city and the railroad company were making such use of the strip of ground in question as would not interfere with the railroad's rights. Under these circumstances the city merely acquired such rights as the use vested in it. That is to say, a mere right of passage over the ground for persons and vehicles, and not the right to obstruct or erect any building upon the ground. It had acquired no right to erect sheds over the ground, and, of course, it could confer none upon any other person."

The running of the full period of limitation must be proved. Northern R. Co. v. Demarest (1919) 94 N. J. L. 68, 108 Atl. 376.

Where a railroad company and a claimant under the right of adverse possession have the same grantor, the view appears to be taken that the right of way is an easement that cannot be defeated by the use, in an ordinary manner, of the right of way by the grantor or those holding under him. It

follows that such a use cannot develop into title by adverse possession. In the reported case (HARVEY V. MISSOURI P. R. Co. ante, 300) the plaintiff brought suit to quiet title. The plaintiff was successor in title to the fee holder, and the defendant the successor of the railroad for whose use the property was condemned. The court holds that the plaintiff may use the right of way so long as his use does not interfere with the use of the right of way by the railroad, and, as both he and the railroad company would be within their rights, there could be no adverse or inconsistent use, nor could there be adverse possession for fifteen years so as to found an independent title, and thus bar the railway company of its rights acquired by condemnation.

Seaboard Air Line R. Co. v. Banks (1922) 207 Ala. 194, 92 So. 117, was a suit in ejectment brought by the railway company against the heirs of the grantor of its deed for a right of way. In reversing a judgment for the defendant, the court said: "W. H. Banks, the grantor in the deed, and the defendants, his widow and daughter, his sole heirs, have been in actual possession of 25 feet on each side of the right of way since Banks conveyed it to plaintiff's predecessor, using it for pasture and farming purposes. It was not being actually used by the plaintiff for railway purposes. This possession by defendants for such purposes alone —the plaintiff having no actual necessity for it for railway use-would not constitute adverse possession to the plaintiff, the railroad. This possession. did not interfere with, nor was it inconsistent with, the use of the right of way by the railroad. Such possession by the vendor of plaintiff or his heirs or his assigns would not constitute adverse possession against the easement rights of the railroad." See also Alabama G. S. R. Co. v. McWhorter (1919) 202 Ala. 455, 60 So. 839. F. E. M.

Powell v. Hopkins, 38 Md. 1.

If plaintiff desires to claim under the deed of trust he must certainly confirm the claim filed for him by Doxen, and ratify the latter's act as his agent. He cannot claim benefits under the deed and repudiate the proceedings.

Edes v. Garey, 46 Md. 24; State v. Bank of Maryland, 6 Gill & J. 206, 26 Am. Dec. 561.

Mr. Robert H. Archer, Jr., for appellee.

Offutt, J., delivered the opinion of the court:

On November 1, 1913, Howard A. Kelly and Susie Kelly, his wife, executed to Jacob A. Doxen, an attorney at law practicing in Harford county, a mortgage for $2,300 on property in that county, and on March 25, 1916, Doxen assigned that mortgage for value to John T. Morgan by a short assignment indorsed on the original mortgage and mailed it to Morgan, who for some unexplained reason did not record it until 1925. In the meantime Doxen, who also collected the interest on other mortgages for Morgan, sent him regularly the interest on the Kelly mortgage to and including November 1, 1924, as though it were a valid subsisting

lien.

But on April 20, 1916, Kelly and his wife had conveyed to Doxen all their property, including the mortgaged property, in trust to convert it into cash, and apply the proceeds to the payment of the debts due by them, "without preference or priority except such as by law provided," and on April 21, 1916, the circuit court for Harford county, on a bill filed to enforce it, assumed jurisdiction of the trust, and Doxen qualified as trustee by filing a bond with appellant as surety for $4,000, which contained the following condition: "That if the abovebounden Jacob A. Doxen do and

the trust reposed in him, by said deed, or that may be reposed in him by any future decree or order in the premises, then the above obligation to be void."

On April 27, 1916, Doxen filed answers for all of the defendants, and in his own individual answer he stated under oath that he held the Kelly mortgage, and filed a certified copy thereof, which did not, however, show the assignment to Morgan, because that assignment had not then been recorded. The property was sold by Doxen as trustee and in due course the sale was ratified, and the proceeds thereof distributed by an auditor's account, which was also finally ratified and confirmed on July 23, 1917. In the audit there was distributed to Jacob A. Doxen individually $2,395.92, in payment and satisfaction of the Kelly mortgage which he had in that proceeding claimed as his own, although in fact he had assigned it to Morgan prior to the institution of the suit.

From the date of the assignment until some time in 1925, Morgan, who had no actual knowledge of the sale of the mortgaged property, had no reason to suspect that Doxen was not honest, but during that year he learned that Doxen had been indicted on several criminal charges and had absconded, and he then promptly consulted Major Robert H. Archer to learn the state in which Doxen had left the matters which he was handling for him. As a result of that visit the assignment was immediately recorded and Morgan learned for the first time that the mortgaged property had been sold and that it had been again mortgaged by the purchaser for an

amount somewhat in excess of the Kelly mortgage. Not having received any part of the principal of his mortgage, or any interest thereon since November 1, 1924, Morgan, on March 4, 1926, brought suit against Doxen, and the appellant, on the bond to which we have referred, on the theory that Doxen's failure to

pay to Morgan the money audited to Doxen in satisfaction and discharge of the Kelly mortgage constituted a breach of the condition of the bond. The case was tried before the court sitting as a jury, and, at the conclusion of the trial, the appellant prayed the court to rule as a matter of law that there was no evidence in the case legally sufficient to entitle the plaintiff to recover and that its verdict should be for that defendant. The court refused that prayer, and that ruling is the subject of the first and only exception found in the record. After the refusal of that prayer, the case proceeded to a judgment for the plaintiff, from which judgment this appeal was taken.

The facts of the case, which are undisputed, are in substance as we have stated them, and the only question presented by the appeal is whether they constitute a cause of action. The appellant's liability is measured by the terms of the bond, which, in substance, provided that it should be effective if Doxen failed to well and faithfully perform the trust reposed in him by the deed, or that might be reposed in him by any "future order or decree in the premises." The trust reposed in Doxen by the deed was to sell all the property of the grantors and apply the proceeds, after deducting the costs of administration, to the payment of all their debts according to their legal priority, and the only order or decree passed in the case which is material to the question before us was an order of July 23, 1917, ratifying an audit which distributed to Doxen, as an individual, $2,395.92, on account of the Kelly mortgage. From this statement it is apparent that what happened was that Doxen, after he sold the Kelly mortgage to Morgan, knowing that the assignment of it had not been recorded, fraudulently filed it as his own, in the equity proceeding in which he qualified as trustee to sell the property of the Kellys for the benefit of their creditors, and that, when the amount of the mortgage debt and

interest was audited to him in that proceeding as the record holder thereof, instead of applying the money to the satisfaction of the mortgage debt and interest, he frauduently appropriated it to his own use. As we understand it, appellant's contention is that Morgan's loss was not directly due to any breach of trust by Doxen, but to his fraudulent act as an individual in asserting that he was the owner of the Kelly mortgage, and that, since the bond only covered his acts as trustee, appellant, the surety thereon, is not liable. That contention is, we think, too refined. It is true that Doxen's act in filing the mortgage as his own, and in withholding the fact that Morgan really owned it, was fraudulent and dishonest, but the principal purpose of such a bond, and indeed the only reason for it, is to protect those who may be interested in the trust fund from just such acts. If that protection can be whittled away by any such theory as that Doxen, the individual, could perpetrate frauds resulting in the waste and wrongful conversion of the trust estate to which Doxen as trustee must be officially blind, the protection afforded by such bonds would be flimsy indeed.

The sole purpose of the Kelly deed was to devote all the property of the grantors to the payment of all their debts, or, if it proved insufficient to pay all such debts, then to apply it to the payment of such debts pro rata according to their legal priority, and it conveyed to Doxen all the property of the grantors upon the expressed and specified trust to carry out and effect that purpose. And when Doxen as trustee under that bond received a fund sufficient to satisfy in full the mortgage debt of the grantors, and that fund was audited to him as an individual, but for that specific purpose, and when he, knowing that he as an individual had no interest in the mortgage, and knowing too that it was held by another, and that it was due and payable, instead of applying the fund to

Assignment for creditors-liability of bondfraud of assignee.

debt, converted it to his own uses, it cannot reasonably be said that he did not commit a breach of trust. The grantors gave him all their property to pay their debts, and when he accepted the property, instead of paying their debts with it, used it for his own purposes and left them stripped of their property, but still owing their debts, he did indeed perpetrate a fraud, but one which itself was a violation of the trust which he had accepted. And, whilst that fraud necessarily involved personal delinquency, nevertheless it was so intimately connected with his official delinquency that they cannot well be distinguished. For if some person, other than Doxen, had been the trustee, and such person knew, as Doxen knew, that his claim to the mortgage debt was fraudulent, he would not in the honest administration of the trust have paid the money to satisfy the mortgage debt to Doxen, at least without obtaining a release of the mortgage. And it was only through the abuse of his official powers as trustee that Doxen was enabled to keep the fund which should have extinguished the mortgage in his possession without formally releasing it.

The only authority cited by the able and learned counsel for appellant in conflict with that conclusion is National Surety Co. v. State Sav. Bank, 14 L.R.A. (N.S.) 155, 84 C. C. A. 187, 156 Fed. 21, 13 Ann. Cas. 421, but, assuming that it is in point, we are unable to follow the reasoning of the majority of the court in that case. The facts involved were these. Under a Minnesota statute it was the duty of the auditor of Ramsey county to issue orders for the refund of taxes to the holders of certain certificates. One Bourne, the deputy auditor, being duly authorized to sign such refund orders, drew upon the county treasurer seven spurious refunding orders in

favor of fictitious persons, and had them authenticated by the chairman of the board of county commissioners. He then forged assignments of the myths on the back of the orders and sold them to the State Savings Bank, which collected them from the county treasurer. When the fraud was discovered, the county sued the surety on the auditor's bond for the amount paid to the bank, and recovered judgment therefor. The surety paid the judgment and brought suit in the United States. circuit court for the district of Minnesota against the bank to recover what it had paid the county, on the theory that it was subrogated to the county's rights against the bank. Aside from the question of subrogation, the case turned on whether the fraud of the deputy auditor amounted to "official delinquency" or "misconduct in office." Two of the three judges who heard the case in the circuit court of appeals for the eighth circuit held that it did not; the third judge was of the opinion that it did. The ground on which the conclusion of the majority appears to have been based, as stated by them, was that Bourne's acts "were altogether personal in their character," and "were in no sense representative or official," and "that no duty arising out of his official relation required him to make any of the representations or commit any of the crimes just alluded to." But if that reasoning is sound, then no such bond would be enforceable, because it rarely happens that any fiduciary or official is required by the obligation of his position to commit crimes or make fraudulent representations. Moreover the court in that case admitted that, in a suit by the county commissioners against the surety company, Bourne's wrongful acts amounted to "misconduct in office," but that, in a suit by the bonding company against the bank, they did not. We cannot accept that reasoning, but prefer, so far as it applies to this case, the view expressed by Judge Hook who said: "The sole