Tizer v. Tizer
| Decision Date | 29 April 1932 |
| Docket Number | 58. |
| Citation | 160 A. 163,162 Md. 489 |
| Parties | TIZER ET AL. v. TIZER ET AL. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.
Action by Mary Tizer and others against Frank Tizer and others. From a judgment in favor of plaintiffs, defendants appeal.
Affirmed.
Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.
Louis Hollander, of Baltimore, for appellants.
John D C. Duncan, of Towson, for appellees.
The appellants and the appellees, on June 9, 1930, entered into the following agreement, which was signed and sworn to before and witnessed by a notary public:
Between Frank Tizer, Steve, Mary, and Agnes, property owners.
The house is located at Turner Sta., Maryland Ave. Balnew Md. on lots numbered 84 and 85.
John Nagy, Mary Tizer, and Agnes Tizer have made preparations to rent the building.
Terms.
(1) The rent for the first five years will be $100.00 each month until June 15, 1935. From June 15, 1935 to June 15, 1940 the rent will be raised to $110.00 each month. The property owners will not be able to raise the rent until after the term of the agreement expires. The rent must be payable on the 15th of every month.
(2) The property owners may sell the building, but the new owners will have to keep the same agreement, which is unchangeable.
(3) This agreement will go into effect on June 15, 1930--until June 15, 1940. The agreement will run in a term of ten years.
(4) When the term of ten years is over the tenants will--have the first rights to open up a new business under a new agreement.
(5) The property owners must turn the building over to the tenants in good condition, and must keep it in a good condition through the ten year term making all repairs necessary and in three years time they must build a garage.
(6) The property owners require the tenants to obey the rules of the State of Maryland. They are in no way responsible for any of the State rules broken.
(7) When the tenants decide on selling the business, the property owners will leave them at their liberty.
Signed and sworn to this 9th day of June 1931.
James K. Weeder, Notary Public." The case comes to this court on appeal from the circuit court for Baltimore county, from a judgment of that court on its verdict, sitting as a jury, in favor of the appellees. The action was one of replevin by the appellees for the recovery of certain goods and chattels which had been distrained by the appellants for rent alleged to have been due and in arrears in respect to the tenancy alleged to have been created by the above agreement.
The facts as appearing from the record are: That the property covered by the lease is owned by Frank Tizer and Steve Tizer, the appellants, and their respective wives as tenants by the entirety, each pair being entitled to a half interest as tenants in common, and said respective half interests being held by the entirety; that there are two lots covered by the lease, Nos. 84 and 85, upon which two lots, or a portion of both lots, there is erected a building which under the agreement was to be occupied by the appellees during the term of the lease as a restaurant; that the appellees took possession of the property under the agreement, which became effective June 15, 1930, and continued to occupy it until the 14th day of November, 1930, without paying the rent as stipulated in the agreement, which was $100 per month; that the appellants, on the 18th of November, 1930, through their bailiff, distrained the chattels and personal property belonging to the appellees and being on the property in question, in satisfaction of five months' rent, amounting to $500; that the property so distrained was replevied by the appellees on November 21, 1930, and turned over to them by the sheriff.
To the replevin suit the appellants filed pleas, the first being that they did not commit the wrongs alleged; second, that the goods and chattels mentioned in the declaration aforesaid were duly levied upon and seized under a lawful writ of distraint for rent due; and, for a third plea, made avowry, admitting the taking of the property replevied, but justifying the taking under the distraint proceeding for rent due under the terms of the lease or agreement hereinbefore referred to.
To the avowry the appellees filed pleas as follows: First, that at the time of suing out the distress there was no rent due and in arrears; second, that the avowants did not demise the premises to them as alleged; and, third, that the plaintiffs did not hold and possess the premises under a demise from the avowants as their tenants.
Upon these pleadings the case was submitted to the court sitting as a jury, and the avowants offered testimony showing the distraint for rent as having been made regularly and in conformity with the law. They further produced in evidence the agreement of renting, this agreement being produced by the witness Steve Tizer, one of the appellants, who identified each and every of the signatures thereon, and further testified that he was present and saw the respective parties sign the same; that he had not received any rent; that the rent to be paid was $100 per month, "and the three partners were to pay it, that is the tenants under the agreement who had gone into the restaurant business, into a partnership for the conduct of that business." On cross-examination this witness testified: "Agnes Tizer is my wife, I am collecting rent from her and Frank Tizer's wife and John Nagy; she is manager and owner; and Mary Tizer mentioned as a property owner in the agreement is Frank Tizer's wife, and witness and Frank Tizer were brothers that there are two lots under the restaurant, those lots are owned by Frank Tizer, Mary Tizer * * * the two Tizers and wives." At this point the record states: "It was here admitted that the property covered by the lease in this case is owned by Frank Tizer and Steve Tizer and their respective wives as tenants by the entireties; each pair being entitled to half interest as tenants in common and said respective half interests being held by the entireties." The witness, continuing his testimony, said: "The numbers of the two lots under this building are 84 and 85; witness could not tell for sure who owns number 84; witness and Agnes Tizer own one of those lots, the deed is in their two names and the other lot is in the name of Frank Tizer and Mary Tizer; there are two separate deeds, they were made out simultaneously; and thereupon attorney for defendants (avowants) excepted to the character of evidence just hereinbefore reported and the Court overruled said objection." This constitutes the first exception.
The second and final exception is to the action of the court in granting, at the close of the avowants' case, the following prayer: "The plaintiff ...
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Tizer v. Tizer
...162 Md. 489 TIZER ET AL. v. TIZER ET AL. No. 58.Court of Appeals of MarylandAugust 1, 1932 Dissenting opinion. For majority opinion, see 160 A. 163. J. (dissenting). The facts on this record are stated in the decision of the court. They present this situation. A and B, his wife, are seised ......