Cook v. Boehl

• Decision Date: 15 January 1948
• Docket Number: 60.
• Citation: 56 A.2d 787,189 Md. 532
• Parties: COOK et al. v. BOEHL et al.
• Court: Maryland Court of Appeals

56 A.2d 787

189 Md. 532

COOK et al. v. BOEHL et al.

No. 60.

Court of Appeals of Maryland

January 15, 1948

Appeals from Circuit Court of Baltimore City; Emory H. Niles, Judge.

Suit by Grace L. Boehl against Fillmore Cook and Catherine E. Cook to sell for the purpose of partition a certain lot, and for appointment of trustee to sell realty and a receiver to collect rents until ratification of sale. Fillmore Cook filed a cross-bill seeking appointment of a trustee to sell the realty, on condition that certain fixtures are not included in the sale. Edward L. Ward and others petition for leave to intervene as parties complainant. The Paradise Amusement Company prayed for permission to intervene as party defendant. The petitioners were permitted to intervene as prayed in their petition. From adverse order, Fillmore Cook and the Paradise Amusement Company appeal.

Appeal dismissed.

Joseph Townsend England, of Baltimore (Fillmore Cook of Baltimore, on the brief), for appellants.

Edward L. Ward and Rome & Rome, all of Baltimore, for appellees.

Roszel C. Thomsen, of Baltimore, for J. Gilbert Prendergast trustee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

This appeal arises out of the same partition proceeding that was before this court in the case of Cook v. Boehl, Md., 53 A.2d 555. In that case the appeals were from a decree of November 4th, 1946, appointing a trustee to sell the property No. 7-9 E. North Avenue and to receive and collect rentals until the sale, and from an order of January 6, 1947, determining that the yearly tenancy of the Paradise Amusement Company was terminated, as to the Boehl interest but not as to the Cook interest, on December 31, 1946. These rulings were affirmed. The order also provided that the Paradise Amusement Company should pay to the trustee an amount equal to one-half of the rental specified in the lease for the undivided one-half interest of Fillmore Cook, and a somewhat higher amount, representing the reasonable rental value, for the undivided one-half interest of Miss Boehl and her associates, after December 31, 1946, until the ratification of sale. On this point we said (53 A.2d at page 561): 'there is no justification for the fixing of rent payable by the lessee other than that agreed upon by the parties.'

While the appeals were pending, the Paradise Amusement Company through Fillmore Cook its President and counsel, tendered rentals to the Trustee in the exact amount of the rentals payable prior to December 31, 1946, that is to say, $60 per week for the first floor and $65 per month for the second floor. The Trustee demanded the increased rentals called for by the order of January 6, 1947. Cook replied that the appeal bond was adequate security for any additional rentals due under the order appealed from. It appeared, however, that the Trustee was not specifically named in the bond. On March 17 1947, the Trustee filed a petition praying that the Court pass an order authorizing and directing him to accept the payments tendered without prejudice to his right to collect the increased rentals, should the order be affirmed on appeal. To that petition, the Paradise Amusement Company, and Cook individually, filed a demurrer on the ground that the Court was without jurisdiction to pass any order pending the appeal, and an answer alleging that the Trustee had already accepted...