Hollander v. Central Metal & Supply Co. of City of Baltimore

• Decision Date: 02 December 1908
• Parties: HOLLANDER et al. v. CENTRAL METAL & SUPPLY CO. OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

71 A. 442

109 Md. 131

HOLLANDER et al. v. CENTRAL METAL & SUPPLY CO. OF BALTIMORE CITY.

Court of Appeals of Maryland

December 2, 1908

Supplemental Opinion, February 11, 1909.

Appeal from Circuit Court of Baltimore City; Thos. Ireland Elliott Judge.

Suit by the Central Metal & Supply Company of Baltimore City against Charles S. Hollander and others. From a decree for plaintiff defendants appeal. Affirmed and remanded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE WORTHINGTON, and THOMAS, JJ.

Arthur W. Machen, Jr., and Arthur W. Machen, Sr., for appellants.

John G. Schilpp and H. M. Brune, for appellee.

THOMAS J.

The Central Metal & Supply Company of Baltimore city, "a corporation duly incorporated under the laws of the state of Maryland," having purchased the leasehold estate in a certain lot of land in Baltimore city, brought this suit on the 31st day of May, 1907, against the appellants, as the present owners of the reversion in said lot, for a specific performance of the covenant in the lease of the lessor, "her heirs and assigns," upon payment of the amounts specified therein, to convey the fee to the lessees, their "heirs and assigns." The bill alleges that the defendants, Charles Hollander and Elsie Hollander, his wife, and Lee M. Hollander, are nonresidents, and that the plaintiff, in January, 1907, addressed a letter to these defendants notifying them of its desire to redeem the ground rent under the lease, and prepared and forwarded to them for execution a deed from them to the plaintiff of the fee in said lot, which they refused to execute on the ground that "the said rent is not redeemable." After an order of publication had been passed against the nonresident defendants, Charles S. Hollander and wife filed a motion to rescind the order and to quash the proceedings, on the ground (1) that a suit for the specific performance of a contract is a suit in personam, and cannot be maintained against a nonresident on service by publication, and (2) that the order of publication in this case does not contain a sufficient description of the property to inform the defendants of the property involved in the suit. Some time after this motion was filed, Lee M. Hollander filed a similar motion, alleging, as an additional reason for rescinding the order as against him, that at the time of the bringing of the suit he was a resident of the state of Maryland.

The case of Worthington v. Lee, 61 Md. 530, was for specific performance of a covenant for a renewal of a lease for 99 years, renewable forever, and for an injunction to restrain an action of ejectment for the recovery of the premises. Some of the non-resident defendants appeared and pleaded to the jurisdiction of the court to grant relief, while against others interlocutory decrees were entered in default of appearance and answer. The notice to nonresidents was by publication, and the court, in dealing with the case as against the nonresident defendants, said:

"If the application was for a sale of the property, or for a simple conveyance thereof, those objects could be accomplished by the appointment of a trustee, as provided by Code Pub. Gen. Laws 1904, art. 16, §§ 67, 135. But those provisions of the statute do not apply in a case like the present, where the object of the decree is to secure to the plaintiff the specific execution of the covenant, whereby she is entitled to obtain a renewed lease, with important and valuable personal covenants of the lessors, and without which it would not be an instrument of the character contemplated by the covenant decreed to be performed. The court could direct a lease for 99 years to be made by a trustee, but not with covenant for renewal, and other personal covenants, to bind personally the owners of the reversion, their heirs and assigns. The court could, through the instrumentality of a trustee, direct the conveyance of an estate, or the transfer of a right, but not the making of personal covenants, in the absence of the parties, to bind them personally, and those who may stand in privity with them. The court possesses no such power as that inherently, and the statute does not confer it."

In the case of Hart v. Sansom, 110 U.S. 151, 3 S.Ct. 586. 28 L.Ed. 101, cited and relied on in Worthington v. Lee, supra, the court said:

"It would doubtless be within the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose."

And in the case of Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918, in passing upon a Nebraska statute, and dealing with the right of the state to provide for notice to nonresident defendants, the court said that the state had "control over property within its limits; and the condition of ownership of real estate therein, whether the owner be a stranger or a citizen, is subject to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the person of a nonresident within its limits--its process goes not beyond its borders--but it may determine the extent of his title to real estate within its limits; and for the purpose of such determination may provide any reasonable methods of imparting notice." Section 117, art. 16, Code Pub. Gen. Laws 1904, is as follows:

"If in any suit in chancery, by bill or petition, respecting, in any manner the sale, partition, conveyance or transfer of any real or personal property lying or being in this state, or to foreclose any mortgage thereon, or to enforce any contract or lien relating to the same, or concerning any use, trust or other interest therein, any or all of the defendants are nonresidents, the court in which such suit is pending may order notice to be given to such nonresidents, of the substance and object of such bill or petition, and warning them to appear by a day therein stated."

Section 127 of article 16 provides how the notice shall be given, and section 91 authorizes the court, whenever the execution of a deed of any kind is decreed, to appoint a trustee to execute it. The prayer of the bill and the covenant here sought to be enforced is for conveyance to the appellee of the lot described in the lease, and, while the court could not enforce a decree requiring a nonresident to execute a deed for the property, its decree may be made effective, under the provisions of the Code, by the appointment of a trustee to convey the title of the appellants, and to that end the proceedings are in rem and not in personam. Miller's Equity Procedure, § 120; White v. White, 7 Gill. & J. (Md.) 208; 22 Am. & Eng. Ency. of Law, 917; Phelps on Juridical Equity, §§ 85, 223.

The order of publication, which is set out in the record, in addition to describing the land as the "lot of ground on the east side of a ten-foot alley in the rear of Lombard and Frederick streets in the city of Baltimore," and as being subject to the annual ground rent of $36 "created by the lease from. Charlotte Bolgiano to Robert Bolton and others, dated July 18, 1835, and recorded in Liber T. K. No. 262, folio 294," etc., states that an undivided one-third interest in the reversion in said lot is vested in Edward Hollander, trustee for Amelia Hollander, for life, remainder to Charles S. and Levi M. Hollander, and that the remaining two-thirds interest is vested in said Charles S. and Levi M. Hollander, "as by reference to Liber R. O. No. 2243, folio 93, will appear," and that the plaintiff notified the defendants by letter of its desire to redeem said rent, and prepared and had sent to them for execution a deed from them to the plaintiff for their interest in said lot, which they declined to execute and returned. The reference to the lease under and by virtue of which the defendants received the annual rent of $36, to their interest in the reversion, and to the letter and deed sent to them, could have left no doubt in their minds as to the land referred to, and we think was sufficient notice to the defendants of the subject-matter of the suit. Meshaw v. Meshaw, 2 Md. Ch. 12; Phelps on Juridical Equity, 313.

The petition of Lee M. Hollander was answered by the plaintiff, denying that he was a resident of the state of Maryland, and again alleging that he was a nonresident. The matter, as stated in the opinion of the court below, was submitted, without proof, on the petition and answer, and his motion, and the motion of Charles S. Hollander, was and we think properly, overruled. Where a case is submitted on petition and answer, the truth of the facts alleged in the answer is taken to be admitted, but the privilege of having a case so heard belongs only to the petitioner. The record does not disclose who set this motion down for hearing, but as the plaintiff in this case had no right to do so on the petition and answer, we must assume that it was done at the instance of the petitioner. Miller's Equity Procedure, § 255, and notes.

After these motions were overruled, the defendants demurred to the bill on the following grounds: (1) That the bill does not show plaintiff's right to take advantage of the covenant in the lease; (2) that the plaintiff does not offer to comply with the terms of the covenant; (3) that the covenant is not one running with the land, and cannot be enforced by the assignee of the lessees against the assignees or the lessor; and (4) that the covenant cannot be enforced against the assignee of the reversion because it violates the rule against perpetuities.

The bill charges that the plaintiff, on the 9th day of January 1907, obtained by deed from Benjamin...