Banks v. Haskie

• Decision Date: 21 June 1876
• Citation: 45 Md. 207
• Parties: ANDREW BANKS, and ANDREW BANKS, Trustee, v. THERESA HASKIE.
• Court: Maryland Court of Appeals

45 Md. 207

ANDREW BANKS, and ANDREW BANKS, Trustee, v. THERESA HASKIE.

Court of Appeals of Maryland

June 21, 1876

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before BOWIE, STEWART, MILLER and ALVEY, J.

Charles Poe and John P. Poe, for the appellant.

If the complainant were ignorant in point of fact of the time at which her term expired, her ignorance is both in law and in equity, of such a character as to be considered gross negligence, and she ought not to be heard to set it up as the basis of a prayer for relief. Wherever such a question has been brought before the Courts, they have without exception determined, that ignorance is considered wilful, when the party neglects the means of information that ordinary prudence would suggest; and it is clear that ignorance of a man's own rights conferred by an instrument actually in his possession or power, cannot excuse the performance of any condition imposed upon the persons claiming under the instrument. 1 Platt on Leases, 759; Harris vs Bryant, 4 Russ., 89; Maxwell vs. Ward, 11 Price, 3; Same Case, 13 Price, 674-6.

The original lease was duly executed, acknowledged and recorded and was therefore notice not only to the appellee, but to the whole world, and to allow her to plead ignorance of its contents, would be to render useless the whole system of recording conveyances now in practice in this State, as well as to reverse the frequent and uniform decisions of this Court upon the subject. Cooke vs. Kell, 13 Md., 469.

A further reason assigned for the interference of equity is that "time is not of the essence of the contract to renew the term." This reason is also insufficient, for time is of the very essence of the contract (if there be any) in this case, and having been guilty of gross laches in delaying her demand for a new lease until many years after the expiration of the term, it is now too late for the appellee to ask a Court of equity to relieve her. Maughlin vs. Perry, 35 Md., 352; Kane vs. Hamilton, 1 Ridgeway's Cases in Parl., 180; Bateman vs. Murray, 1 Ridgeway's Cases in Parl., 187; Eaton vs. Lyon, 3 Vesey, 690; Baynham vs. Guy's Hospital, 3 Vesey, 294; City of London vs. Mitford, 14 Vesey, 41; Job vs. Bannister, 2 K. & J., 374; Kerr on Injunctions, sects. 84-98; Adams' Equity, s. p. 89; 1 Platt on Leases, 753, et seq.; 1 Fonblanque's Equity, s. p. 432.

This Court has but recently decided, (Maughlin vs. Perry and Warren, 35 Md., 352,) that the demand for a renewal of a term must be made before the expiration of the term; and this was the opinion of Lord MANSFIELD, Lord THURLOW and Lord ELDON, as well as the solemn adjudication of the English House of Lords, in the only two cases of this character which were brought before it for determination.

The case of Boyle vs. Lysaght, in the Irish House of Lords, was decided after the passage of what was known as the Irish Tenantry Act, and was simply a judicial interpretation of that statute. It was supposed that such an Act was necessary, because of the vast quantity of property which was held in Ireland, under leases containing clauses of renewal. It was strenuously argued that the fact that there were so many of these leases, was sufficient to give equity jurisdiction in cases of this kind; but the House of Lords of England, twice, after full argument, denied that they could found their decision upon a local equity, and refused to give relief. This local equity will be really the only ground upon which the appellee asks for an affirmance of the decree in this case. But no such circumstances exist in this State as those which were supposed to create what was termed a local equity in Ireland. Only a few of these leases have as yet fallen in, and we have here a complete system of recording which gives full notice to the tenant of the time at which his term will expire, at the same time that it notifies him of the amount of the rent and the dates at which it accrues. It is the almost universal practice for each assignment to refer to the date and place of record of the original lease, and this practice does in point of fact afford notice to a prudent person of all the rights which he has acquired and all the liabilities to which he has become subject. As only a very few of these terms have expired, there can be no great hardship effected by deciding that there must be a renewal within the term, and such a decision will conduce to the settlement of all leasehold property upon a firmer basis than a contrary decision possibly could. If persons are authoritatively warned that they must comply strictly with the contracts to which they have willingly become parties, there can be no doubt that they will do so.

Every agreement, to merit the interposition of a Court of equity to enforce it, must be fair, just, reasonable, bona fide, certain in all its parts and mutual; and if any of these ingredients are wanting, equity will not decree specific performance. Smith vs. Crandall, 20 Md., 482.

There is no pretence that the contract in this cause is not fair, just, reasonable, bona fide and certain in all its parts, but there is no mutuality of obligation. Even during the term, the appellant could not have compelled the appellee to renew. Suppose the property in controversy had so depreciated in value that the appellee became unwilling to pay the rent upon it, and had declined to ask for a renewal during the term, could a Court of equity compel her to take a new lease? Clearly not.

The failure of the appellee to demand a new lease has destroyed all the appellant's remedy for the collection of the rent, because, as there is no term there can be no reversion; and there being no reversion there can be no distraint, as a reversion is the foundation of the right to distrain. There can be no re-entry for rent in arrear under a lease, for the lease has expired. Therefore the only remedy that the appellant could resort to was by an action of ejectment, in which, under our law, he can recover the mesne profits as well as the property itself.

John H. B. Latrobe, for the appellee.

Time is not of the essence of a contract in equity. The mere fact that a day has been specified for its completion, will not per se render it essential; and if time is not originally declared essential, it cannot be made so by either party alone. Courts of equity will disregard generally the mere lapse of time; and upon the suggestion, or at the instance of him apparently at fault, will, regarding the spirit rather than the letter, decree a specific performance of the contract; and this, upon the ground that the object and end of the parties was to attain the end proposed in the contract, and for which it was created, irrespective of the time named. Roberts vs. Berry, 3 De G., M. & G., 284; Peggs vs. Trisden, 16 Beav., 239; Maughlin vs. Perry and Warren, 35 Md., 359; Parker vs. Morold, 16 Jurist, 959; Barnard vs. Lee, 97 Mass., 95.

That the object and end of the lease, was to create a perpetual tenancy, by successive renewals of terms of ninety-nine years, is seen by the language in the concluding words of the covenant, "so that this present demise shall and may be renewable and renewed forever." That at the date of the lease in question, both parties regarded it as creating a perpetuity, cannot be denied-- that it has failed to do this in legal technicality is the result of circumstances fully detailed in the bill--not one of which places the present case in the category of those where relief has been denied because of fraud or bad faith, or culpable negligence. On the contrary this case comes within the category stated by Story, when a Court of equity may decree a specific performance; that is to say--when there has been no gross negligence in the party seeking it,--when it is conscientious that the agreement shall be performed,--and when compensation can be made for the injury occasioned by non-compliance with its strict terms. Story's Equity Juris., sec. 775; Maughlin vs. Perry and Warren, 35 Md., 358; Smoot vs. Andrews, 19 Md., 406.

Although many of the cases decided in the English Courts towards the close of the eighteenth century and in the beginning of the present, are adverse to the extension of the equity doctrine regarding time, to the renewal of leases, there were reasons for this doctrine, which cannot influence the Courts in this State. The first reason was, that such renewed leases tended to perpetuities, while our leases, held to be good at law, provide for perpetuities. Moore vs. Foley, 6 Ves., Jr., 232; Iggulden vs. May, 9 Ves., Jr., 326; Eaton vs. Lyon, 3 Ves., Jr., 298; Somerville vs. Chapman, 1 Bro. C. C., 62; Tutton vs. Foote, 2 Bro. C. C., 636.

Again, the majority of leases there were not for a certain number of years only, but for a certain number of years dependent upon lives; and upon the naming of a life to succeed a preceding one that had fallen in, a fine for the naming of a successor could be demanded. During times of great mortality many lives might fall in, and in rapid succession--so that, if the lessee failed to name at the appointed time, the lessor would be deprived of fines, whose amount might be sufficient to make their collection important to the lessor; hence, the time in such cases was regarded as an essential element of the contract.

Renewals have been decreed, notwithstanding a non-compliance as to time. Rauston vs. Bentley, 4 Bro. C. C., 415; Deane vs. Marquis of Waterford, 1 Scho. & Lef., 451, foot note; Lord Ross vs. Worsop, 4 Bro. P. C., 44; Anderson vs. Sweet, 2 Bro. P. C., 430; Bridges vs. Hitchcock, 1 Bro. P. C., 522; Boyle vs. Lysaght, 1 Vern. & Scriv., 135-166.

It is admitted that where there has been gross lache...