Kolker v. Biggs

• Decision Date: 06 November 1953
• Docket Number: No. 8,8
• Citation: 99 A.2d 743,203 Md. 137
• Parties: KOLKER v. BIGGS.
• Court: Maryland Court of Appeals

Page 137

203 Md. 137

99 A.2d 743

KOLKER v. BIGGS.

No. 8.

Court of Appeals of Maryland.

Nov. 6, 1953.

William Saxon, Baltimore, for appellant.

B. Conway Taylor, Jr., Baltimore (Palmer R. Nickerson and Due, Nickerson, Whiteford & Taylor, Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Benjamin Kolker, owner of the leasehold in the real property at 1131 East Lexington Street in Baltimore, brought this suit against Eleanor C. Biggs to obtain a judicial declaration that the ground rent claimed by defendant is extinguished under the statute of limitations in the Landlord and Tenant Law. Code 1951, art. 53, § 36.

On April 2, 1909, Max Cohen, owner of the property in fee simple, leased it to Aaron Cohen, his executors, administrators and assigns, for 99 years, renewable forever, for an annual ground rent of $120, payable in equal semi-annual instalments, and then conveyed the fee, including ground rent and reversion, to Robert Biggs and Alice C. Biggs, trustees for Eleanor C. Biggs. On the same day the leasehold was conveyed back to Max Cohen.

In 1921 Cohen conveyed the leasehold to Diamantis Pardos and wife. In January, 1927, Pardos and wife conveyed it to Minnie Eaton, who mortgaged it to the B. I. L. Building and Loan Association. At that time the building association, which was established by Benjamin I. Levinson as a family enterprise, was being operated by the founder's son; but in 1929 the son was forced by illness to place most of the work in the hands of his son, S. Robert Levinson. The latter, as trustee, offered the leasehold at a foreclosure sale and sold it to the building association. In December, 1943, the building association conveyed it to Annie Levinson, S. Robert Levinson's mother. In June, 1944, Annie Levinson sold it at auction to complainant for $1,800.

Robert Biggs and Alice C. Biggs, trustees, continued as the owners of the ground rent and reversion from 1909 until Biggs' death in February, 1933, when Mrs. Biggs became the sole owner. Biggs' nephew, Richard D. Biggs, alleged that on account of the many difficult probems that beset him in the years that followed he forgot all about the ground rent until it was called to his attention nearly 20 years afterwards. In August, 1952, Biggs, acting as substituted trustee, conveyed the ground rent and reversion to his consin, Eleanor C. Biggs. Miss Biggs entered suit in the People's Court to recover the ground rent from complainant.

Complainant thereupon filed the instant suit in the Circuit Court No. 2 to extinguish the ground rent and to enjoin Miss Biggs from prosecuting her suit in the People's Court or any other proceeding for recovery of the ground rent. Defendant agreed to have the case heard without question of jurisdiction.

Richard D. Biggs testified, that upon his uncle's request, he sent a bill for the ground rent to the B. I. L. Building and Loan Association in September, 1932, which was slightly less than 20 years before defendant's demand for payment. The chancellor, giving credence to Biggs' testimony, dismissed the bill of complaint. Complainant appealed from that decree.

Ground rent leases, which were rare in England but common in Ireland, were introduced in Maryland before the Revolution. Seldom used in other States, they have been a favorite form of tenure in Baltimore. In the ground rent lease, as used in Maryland, the owner of the land in fee simple leases it for the period of 99 years, with a covenant for renewal from time to time forever upon payment of a small renewal fine, upon the condition that the lessee will pay a certain rent and that if the payment is in default the lessor may reenter and terminate the lease. The lessee also covenants to pay all taxes on the property. The leasehold is considered in the law as personal property, but in practical effect it is real property subject to payment of the ground rent and all taxes on the land and improvements. Banks v. Haskie, 45 Md. 207; Culbreth v. Smith, 69 Md. 450, 16 A. 112, 1 L.R.A. 538; Moran v. Hammersla, 188 Md. 378, 52 A.2d 727.

Long ago it was found that Maryland's unique system of ground rent leases had resulted in the complication of many legal tiltes. Very often the ground rents were small and were not collected for many years, and when the land was subdivided and owned by many persons, it was difficult to obtain clear titles for the properties. In 1884, affer urgent demands for remedial legislation for the quieting of titles, the Maryland Legislature enacted the statute of limitations in the Landlord and Tenant Law. Laws 1884, ch. 502, Code 1951, art. 53, § 36.

This Act, upon which complainant relies, reads as follows:

'Whenever there has been no demand or payment for more than twenty consecutive years of any specific rent reserved out of a particular lot or any part of a particular lot under any form of lease, such rent shall be conclusively presumed to have been extinguished and the landlord shall not thereafter set up any claim thereto or to the reversion in the lot out of which it issued, or have the right to institute any suit, action or proceeding whatsoever to recover said rent or said lot; * * *.'

The Act of 1884 is supplemental to the Statute of 21 James I, ch. 16, which is recognized as in force in this State. 2 Alexander's British Statutes, Coe's Ed., 599-628. The effect of our Act, when it is shown that ground rent has been neither demanded nor paid for more than 20 consecutive years, is not only to bar the rent already due, but also to bar the reversionary interest of the owner of the fee, so that the lessee's rights are similar to the rights vested in a person holding by adverse possession under the British statute, including the right to maintain an action of ejectment for the recovery of the land even against the holder of the paper title who ousted him. Trustees of Sheppard and Enoch Pratt Hospital v. Swift & Co., 1940, 178 Md. 200, 208, 13 A.2d 174.

As the Court said in Safe Deposit & Trust Co. v. Marburg, 110 Md. 410, 414, 72 A. 839, 841, the Legislature has the power to pass laws for the vesting of title in persons holding land by adverse possession, provided that the former owners have a reasonable time after the enactment to assert their rights. Chief Judge Boyd, speaking for the Court in that case, made the following comment on the 1884 Act: 'As we adopted the English statutes which were in force on July 4 1776, and which by experience had been found applicable to our conditions, and as that of 21 James I, c. 16, was held to be in force here, it was not necessary for the Legislature of Maryland to pass such a statute, but it has from time to time passed laws which have changed that statute, and which prescribe the kind of evidence required to establish adverse possession.'

In the instant case the testimony indicated that no ground rent had been paid for about 23 years, three years longer than required by the statute. While there was testimony that the B. I. L. Building and Loan Association, to whom Minnie Eaton had mortgaged the leasehold in January, 1927, had paid the ground rent in May, 1929, complainant's witness, S. Robert Levinson, testified that no rent had been paid for 15 years from May, 1929, to June, 1944, when complainant acquired the leasehold; and complainant testified that he had not paid any rent during the period of 8 years, from June, 1944, when he purchased the property, to July, 1952, when he received the first demand from defendant's attorney. Therefore, the pivotal...