Rocks v. Brosius

• Decision Date: 09 March 1966
• Docket Number: No. 73,73
• Citation: 241 Md. 612,217 A.2d 531
• Parties: Ralph D. ROCKS et ux. v. J. William BROSIUS et al.
• Court: Maryland Court of Appeals

Page 612

241 Md. 612

217 A.2d 531

Ralph D. ROCKS et ux. v. J. William BROSIUS et al.

No. 73.

Court of Appeals of Maryland.

March 9, 1966.

John D. Gilmore, Jr., Hyattsville (Leo Wm. Dunn, Jr., and William V. Meyers, Hyattsville, on the brief), for appellants.

J. Nicholas Shriver, Jr., Baltimore (Cross, Shriver, Bright & Washburne, Baltimore, and Hal C. B. Clagett, Upper Marlboro, on the brief), for appellees.

Before PRESCOTT, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

This appeal arises from a final decree passed on February 11, 1965 by Judge Bowie in the Circuit Court for Prince George's County granting specific performance, of, as well as declaratory and other relief in connection with, an agreement to lease, dated August 4, 1962 involving a tract of land containing 94.5036 acres lying to the north and south of Contee Road in Prince George's County, known as 'Briarwood.' Also involved is an order passed by Judge Bowie on January 11, 1965 holding the appellants in contempt of an interlocutory injunction dated and filed in this case on May 14, 1964.

'Briarwood,' the 94.5036 acre tract involved in this case was owned in fee simple by John W. Staggers and Ruth E. Staggers his wife (Staggers), on February 5, 1962. On that day the Staggers executed a lease of 'Briarwood' to Prince-Mar Builders, Inc. (Prince-Mar), a Maryland corporation of which Ralph D. Rocks, one of the appellants, was president. By this lease, Prince-Mar held the leasehold interest in the land for 35 years 'renewable from term to term, as hereinafter set forth, in perpetuity, from the 1st day of March, 1962 * * *.' The rent received was $17,010.65 a year payable in even and equal monthly installments accounting from March 1, 1962 over all discounts for taxes, assessments of every kind, and other public charges levied or assessed against the demised premises, all of which charges Prince-Mar, as lessee, covenanted to pay. There was a provision that if the rent was in arrears at any time and the default continued following 10 days written notice, the lessors could make distress for the rent, if in default for 60 days following written notice, the lessors could reenter and hold the demised premises and if in default for 6 months following 60 days written notice of the arrearage of rent, the lessors could reenter and hold the demised premises as if the lease had not been made. There was a specific covenant that the lessee, its successors or assigns would 'pay the aforesaid rent, taxes and assessments when legally demandable' (emphasis supplied). The lease also provided that during the original 35 year period, the lessee could by paying a renewal fine of $1.00 request a new lease for another 35 year term for the annual rental of $17,010.65 'adjusted upwards in the same proportions as the 'Consumer's Price Index for all Items for Moderate Income Families in Large Cities', as determined by the United States Department of Labor, Bureau of Labor Statistics, (or, if there be no such Consumer Price Index, then by the successor or the most nearly comparable successor index thereto), for the month of December next preceding the date on which the Lessee desires to renew said term has increased from such Consumer Price Index for December, 1961 and upon the same covenants and conditions as herein set forth, so that the demise hereby created may be renewable and renewed from time to time, forever.' There was a covenant that if during the original 35 year term, the lessee would pay the sum of $3900 an acre with all accrued rent to the lessors, then the demised property would be discharged from the payment of rent and the lessors would convey the demised property to the lessee, its successors and assigns by a special warranty deed for a good and merchantable title in fee simple. After the expiration of the original 35 year period, there was a similar right of redemption for $3900 an acre adjusted upwards by the Consumer's Price Index formula already mentioned.

The lease further provided that the lessors, their heirs and assigns, would subordinate their interest to bona fide mortgages or deeds of trust obtained from recognized lending institutions 'for the purpose of financing constructive and permanent financing, or refinancing of improvements erected or to be erected on the demised premises' by the lessee, its successors and assigns and that the failure of the lessee, its successors or assigns, to make payments under such mortgages or deeds of trust 'shall constitute a default under the terms of this lease' and the lessees, their heirs and assigns, at their option might (a) terminate the lease and reposses the property or (b) make the payments and charge them with interest at 6% per annum as additional rent immediately due and payable without notice.

By paragraph 10 of the lease, the lessors, for themselves, their heirs and assigns, covenanted with the lessee, its successors or assigns, 'that at the request of the Lessee its successors or assigns, they shall join with it in executing, acknowledging and delivering any and all documents required to effect any subdivision of the subject property, or any part thereof, into smaller parcels, including the dedicating of the public streets and rights of way and easements for public utilities required by such subdivision, * * *.'

In paragraph 11 of the lease there was a covenant that the lessors, their heirs and assigns, upon any subdivision into smaller parcels as the lessee, its successors or assigns, may desire, would enter into separate leases, completely independent of the leases on the remaining properties, containing the same covenants and pro rated rent. Paragraph 11 then continued: 'The Lessors, their heirs or assigns, shall join in such lease instruments as may be prepared by the attorneys for the Lessee, its successors or assigns, to effect a separate leasing of the smaller parcel or parcels * * *.' The recording charges for the cost of preparing the new leases were to be borne by the lessee.

Attached as an exhibit was a metes and bounds description of Briarwood. The description is divided into three parts 1) Parcel A containing 35.0261 acres, 2) Parcels B and C containing 34.2981 acres, and 3) Parcel D containing 25.1794 acres. The total acreage described is 94.5036 acres. This lease was duly recorded among the land records of Prince George's County.

Prince-Mar on March 23, 1962 entered into a written, but unrecorded, agreement to lease Briarwood to J. William Brosius or assigns. Mr. Brosius, a builder of homes, gave his promissory note dated April 10, 1962 for $5000.00 payable to Prince-Mar or assigns within 60 days from date as a payment on account of the agreement to lease.

Prince-Mar, on April 25, 1962, by a deed duly recorded, conveyed its leasehold interest in 'Briarwood' to the appellants Ralph D. Rocks and Jean W. Rocks, his wife (the Rocks or the appellants) as tenants by the entireties for the residue of the term of years yet to come, with the rights of renewal forever, subject to the payment of the annual rent received of $17,010.65 payable monthly in accordance with the lease of February 5, 1962.

On May 9, 1962, A. James O'Mara, a registered engineer, of the engineering firm of Greenhorne & O'Mara, Riverdale, Maryland, prepared a plan of Section One of Briarwood. His certificate indicates the source of title of Mr. and Mrs. Staggers and that the total area in Section One (I) ¹ consists of 20.3945 acres. This area is divided into 52 lots. In the 'Owners' Dedication' signed by Mr. and Mrs. Staggers, as owners, and by the Rocks, as lessees, there is indicated their adoption of the plan of subdivision and the establishment of the building restriction lines, the drainage easements and the dedication of the streets to public use. There is also a recitation that 'There are no suits of [or] action, leases, liens or trusts on the property included in this plan of subdivision, except a certain lease and the parties in interest thereto have indicated their assent.' The plan for Section One (I) was approved by the Maryland-National Capital Park and Planning Commission (Planning Commission) and the Prince George's County Planning Board (Planning Board) on May 23, 1962 and was duly recorded thereafter.

On June 14, 1962, Mr. O'Mara certified a second plat for Section Two (II) of Briarwood containing 14.2915 acres divided into 39 lots. An identical 'Owners' Dedication' was signed by Mr. and Mrs. Staggers and the Rocks on June 12, 1962. The plat for Section Two (II) was approved by the Planning Commission and the Planning Board on June 20, 1962 and was duly recorded thereafter.

The total number of lots in Sections One (I), and Two (II) was 91. A Modification Agreement, dated July 11, 1962, and duly recorded, was entered into between Staggers and the Rocks whereby the 91 lots were severally leased in accordance with the terms of the original lease.

On August 4, 1962, the Rocks as 'Lessors' entered into an agreement with J. William Brosius and Louis J. Brosius (Brosius), as 'Lessees' in regard to the entire 94.5036 acres of Briarwood. The agreement which was signed, sealed and acknowledged by all of the parties recited that the Rocks planned to subdivide the 94.5036 acres into approximately 255 lots and Brosius desired to lease each and all of the lots which the Rocks were willing to lease to Brosius upon the terms set forth. The agreement further recited that Brosius had deposited with the Rocks on March 23, 1962 the sum of $5000.00 'as an earnest money deposit to be held by the Lessors in pursuance of this agreement.'

Paragraphs 2 and 3 of the agreement provided as follows:

'2. The Lessors agree to prepare and cause to be recorded among the Land Records for Prince George's County, Maryland, a Plat, or Plats, of subdivision subdividing the said 94.5036 acre parcel of land into approximately 255 lots as herein above mentioned, 34.6860 acres thereof having been...