Ehrman v. Mayer

• Decision Date: 01 March 1882
• Citation: 57 Md. 612
• Parties: GEORGE M. EHRMAN v. CHARLES F. MAYER, and others.
• Court: Maryland Court of Appeals

57 Md. 612

GEORGE M. EHRMAN v. CHARLES F. MAYER, and others.

Court of Appeals of Maryland

March 1, 1882

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY, ROBINSON and IRVING, J.

Benjamin F. Horwitz, for the appellant.

1. It being admitted that "no part of the original rent reserved by the lease from Howard to Hoos has in the memory of any one now living, been paid by the owner of the lot now and for some years past belonging to Mr. Ehrman and that that lot has always been treated as discharged and relieved from the payment of any portion of said rent," the law will presume some act of the parties in interest relieving the said part of said lot, from the payment of any part of the rent reserved by said lease, or in other words its extinguishment quoad that lot. Casey's Lessee vs. Inloes, 1 Gill, 430 and 505; Connelly vs. Bowie, 6 H. & J., 141 and 144; Burke vs. Negro Joe, 6 G. & J., 136; Beall vs. Lynn, 6 H. & J., 351; Carroll vs. Norwood, 1 H. & J., 172; Shilknecht vs Eastburn, 2 G. & J., 114; Baltimore Chemical Co's Lessee vs. Dobbin, 23 Md. 210; Day vs. Allender, 22 Md., 511; Alexander vs. Walters' Lessee, 8 Gill, 255 and 257; Boyd vs. Harris, 2 Md. Ch Dec., 214.

2. Lucretia Sears, having accepted a surrender of a large part of said lot originally leased by Howard to Hoos, and having made new leases thereof without the consent of the owner of Mr. Ehrman's lot, thereby extinguished said original rent, as the contract contained in said original lease could not be so divided and severed by her without the consent of the owners of the other parts of said lot; and it is submitted that the peculiar Maryland or Irish perpetual lease which creates a sort of rent charge, and under which the lessee, according to the law of Maryland, becomes almost the absolute owner of the lot leased, cannot be liable to have any subdivision or apportionment of the rent made without the consent of the lessee, as it would work such grave inconveniences and disadvantages, and would enable a ground landlord to become a scourge to his tenant. Banks vs. Haskie, 45 Md., 217, 218, 219; Littleton, sec. 222; 1 Thomas' Coke on Littleton, m. pp. 463, 464; Gilbert on Rents, 152; Talbot's Case, 8 Coke, 210; Bliss vs. Collins, 5 B. & A., 876.

3. If either of the above views is correct, then Mr. Ehrman had a right to the relief first prayed in order to have the cloud removed from his title. Davidson vs. Myers, 24 Md., 538; Polk vs. Reynolds, 31 Md., 106; McCann vs. Taylor, 10 Md., 418.

4. If the above views are incorrect, then Mr. Ehrman is clearly entitled to a new lease for his lot, and the Court below should have so decreed; and if the Court below was right in its view as to the payment of a proportional part of the fine and tender of a new lease to the trustee, it should have passed a decree for the execution of such lease conditioned on the performance of those acts, but should not have dismissed the bill because they were not done before the filing of the bill, and averred and proved, which would leave the complainant remediless in such a clear case of right. 1 Story's Eq. Jurisp., secs. 26, 27, 28, 437, 439; Banks vs. Haskie, 45 Md., 216.

5. But the Court was clearly wrong in this view, because the cestuis que trust were all non-residents, and some of them infants, and the trustee had no power delegated to him by the will creating the trust, to execute a proper lease, and the execution thereof would be ultra vires. Besides, it is admitted that the trustee refused to take any action whatever in the premises until advised of his duty, which would of course have relieved the complainant from making any tender before filing the bill, even if it had been originally necessary. Tyson, et al. vs, Latrobe, et al., 42 Md., 337; Buel vs. Pumphrey, 2 Md., 261 and 268.

6. If the appellant is wrong in all these positions, and if it had been impossible to grant any relief on the bill filed, then the bill should have been dismissed without prejudice in order that in such a clear case of right he might perform the pre-requisites and file another bill. Story's Eq. Pleadings, sec. 793; Tyson, et al. vs. Latrobe, et al., 42 Md., 339.

Arthur W. Machen, for the appellees.

The contention of the bill, that "Lucretia Sears, thereby, ( i. e. by the acceptance of the surrender of part of the lot from Lilly,) extinguished said original rent," on the ground that "the contract contained in said original lease could not be so divided or severed by her without being entirely avoided and ceasing to subsist," cannot possibly be maintained. The rent in question is a rent service, and no proposition has been more clearly settled, ever since the date of the publication of Littleton's Tenures, than that if a person who has a rent service, purchase part of the the land from which it issues, the rent will be extinguished only as to the part purchased, and the amount which will in future have to be paid, will be apportioned according to the value of the land. So, likewise, if a lessee for life, or years, surrender part of the land to the lessor, or the lessor enter upon part of the land for a forfeiture in part, the rent will be apportioned. Littleton, sec. 222; Co. Litt., 148 a; Tudor's Lead. Cas. on Conveyancing, 258; Ingersoll vs. Sergeant, 1 Whart., 337; Van Renselaer vs. Chadwick, 24 Barb., 333.

And the rules on this subject are also clearly given in Woodfall's Land. & Ten., (11 th Ed.,) 364, where, amongst other propositions, it is expressly stated, that "when the lessee surrenders part of the land to the lessor, the rent for the remainder is apportioned."

A claim to alternative relief is thus stated in the bill: "Your orator further shews, that even if he is mistaken in said view of his legal rights, it is necessary for him to have executed to him a new lease of said lot so owned by him, for another term of ninety-nine years, renewable forever, subject to a merely nominal rent, as the original lease of said whole lot is about expiring." The prayer of the bill is, "that a decree may be passed for the execution either of a proper deed of the naked fee held by them, (defendants,) in and to your orator's said lot, or for the execution of a new lease thereof to him for other ninety-nine years, renewable forever, whichever it may be determined, he is legally entitled so to receive," and for general relief.

It is manifest that the appellant's right to a new lease, rests altogether upon the covenant contained in the original lease. But none of the conditions of that covenant have been fulfilled by the appellant. Before a lessee or his assignee can be entitled, under such a covenant for renewal, to resort to equity, it must appear:

1. That the complainant has, pursuant to the terms of the covenant, prepared at his own cost, and tendered for execution, a proper new lease. And where only a part of the land originally devised remains subject to the lease, the lease offered must be for that remaining part, and the rent therein expressed to be reserved, must bear the same proportion to the rent originally reserved as such part bears, in value to the entire lot. No lease has been tendered, or even proposed, by the complainant. So far from requesting the execution of any particular lease, he has insisted upon a conveyance of the reversion, and the total extinguishment of the rent, a pretension wholly inconsistent with a demand of a renewal of the former term. Again, in the statement of what he considers as his right, in this aspect of the case, he claims that no more than a nominal rent must be reserved in a new lease; but it is certain that the new rent must be actual and substantial, and strictly proportioned to the land remaining under lease. The same authorities which show the error of the complainant's original contention, that the rent under the present lease has been wholly extinguished, as a consequence of a surrender of part of the land, also show that the existing rent is proportioned to the quantity of land remaining under lease, and that the same proportionate rent must be reserved in any new lease which may be made pursuant to the covenant for renewal.

2. The arrears of rent must be first paid. The tenant can only demand a further lease "on the payment of the rent and performance of the covenants, reserved and mentioned in the original lease, to be paid and performed on the part of the lessee and his assigns." Not only is it not averred that the proportionate rent of the lot of forty-six front feet, remaining unsurrendered, has been duly paid, but the bill states that no rent has been for many years past, paid by the occupants of the complainant's part of it, and it cannot be assumed that the possessors of the other part have paid the rent.

As declared by Lord Justice MELLISH, in a recent case, "the tenant must take the covenant to renew as he finds it; if it contains conditions precedent, he must comply with them before he can claim the benefit of it, and if he has not done so, a Court of equity cannot relieve him." Finch vs. Underwood, L. R., 2 Ch. Div., 310-315. And see, to this point Woodfall Land. and Ten., (11 th Ed.,) 332.

3. The renewal fine must be tendered. There is no apportionment of the fine. If a new lease is to be made, it makes no difference that the quantity of land has been diminished. The covenant in terms, expressly exacts a fine whenever a new lease is demanded, and there is no ground for departing from it. The landlord still has all the trouble and responsibility of making a new demise, and is equitably, as well as legally, entitled to the stipulated compensation.

4. The complainant should have shown distinctly to whom the new...