Waters v. Wambach

• Decision Date: 13 January 1922
• Docket Number: 98.
• Citation: 117 A. 751,140 Md. 253
• Parties: WATERS v. WAMBACH.
• Court: Maryland Court of Appeals

117 A. 751

140 Md. 253

WATERS v. WAMBACH.

No. 98.

Court of Appeals of Maryland

January 13, 1922

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

Suit by Charles T. Wambach against Sophie C. Waters. From a decree for plaintiff, defendant appeals. Affirmed.

Argued before BOYD, C.J., and URNER, ADKINS, and OFFUTT, JJ.

Addison E. Mullikin, of Baltimore (Mullikin & Porter and Theodore C Waters, all of Baltimore, on the brief), for appellant.

John B Gontrum, of Baltimore, for appellee.

URNER J.

On April 22, 1915, Theodore Cooke leased to the appellee a house and lot on Thirty-First street in Baltimore for the term of six months beginning on May 1, 1915, at a rental of $27 per month, with the privilege of renewal for another term of six months. It was further agreed in the lease that "all its provisions and covenants shall continue in force from term to term after the expiration of the term" first mentioned but either of the parties should have the right to terminate the lease at the end of any term by giving to the other party at least thirty days' previous notice in writing, and that the lessee should have the option to purchase the leased property at the price of $2,600 subject to an annual ground rent of $75, and in case he should desire to buy the property "within the term" of the lease, he should "be allowed the rent paid in, less the ground rent, water rent taxes, insurance and interest at the rate of 6 per cent. on the purchase price." The lease was signed and sealed for the lessor by his authorized agent. At the time of its execution the title to the property was held by H. Webster Cooke, the lessor's son, who was his partner in the real estate business.

After the death of Theodore Cooke in January, 1918, the monthly rent accruing under the lease was paid to his estate while it was in course of administration. In February, 1919, the property referred to was conveyed to his daughter, Sophie C. Waters, by the son who held the title. Mrs. Waters has since received the rent. Just prior to the conveyance to her the administrators of Theodore Cooke's estate, of whom she was one, had given notice to the lessee that the existing lease would not be renewed after the expiration of the current term on April 30, 1919, and thereafter the rent would be increased to $32 per month. In April, 1919, the lessee gave notice to Mrs. Waters of his purpose to exercise the option of purchase which the lease conferred. His right to avail himself of the option was denied, and the pending suit for specific performance resulted. The appeal is from a decree requiring the conveyance of the property to the lessee for the price and upon the terms stated in the lease. The grounds of defense mentioned in the answer are that the lease and the option it contained were not authorized by the holder of the record title, that the defendant acquired the title without knowledge of the option, and that the plaintiff's right to exercise it has been lost by delay.

The evidence in the case points to the conclusion that Theodore Cooke was the real owner of the demised property, while the title was nominally held by his son and partner. It is proven that the property was entirely under the father's control, and that the rent was received by him exclusively. There is testimony to the effect that he represented himself to be the owner, and that a few months before his death he urged the plaintiff to make the purchase since attempted. The son, who was the only witness for the defendant, and who does not say that he paid for the property, testified that it was conveyed to him pursuant to an agreement with his father "in the nature of a partnership in the development of real estate," and that the conveyance to his sister, the defendant, after his father's death, was in...