Weininger v. Weininger

• Decision Date: 13 January 1922
• Docket Number: 93.
• Citation: 117 A. 568,140 Md. 227
• Parties: WEININGER et ux. v. WEININGER.
• Court: Maryland Court of Appeals

117 A. 568

140 Md. 227

WEININGER et ux. v. WEININGER.

No. 93.

Court of Appeals of Maryland

January 13, 1922

Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.

Bill by Adam Weininger against John Weininger and wife. Decree for plaintiff, and defendants appeal. Reversed, and bill dismissed.

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

T. Lyde Mason, Jr., of Baltimore (Charles A. Simpson, of Baltimore on the brief), for appellants.

John Holt Richardson, of Baltimore (R. Grason George, of Towson on the brief), for appellee.

ADKINS J.

The bill of complaint in this case, filed on November 7, 1904, alleges: That the defendants (appellants) were, previous to the month of August, 1901, the owners of a certain leasehold lot of ground on the east side of First street, in Baltimore county, subject to a mortgage of $300 to the Canton Permanent Building Association of Baltimore City, and also subject to two judgments, amounting together to about $135; that the said defendants continued in possession of said property up to the month of August, 1901, when, finding themselves unable to pay said mortgage and judgments, and being in arrears for taxes and ground rent, they agreed with plaintiff that, if he would take possession of said property and assume the payment of all back taxes and ground rent, and mortgage interest and other expenses on said property, they would give plaintiff a deed for said property; that plaintiff, relying on said agreement, in August, 1901, entered into possession of said premises, paid all back taxes and ground rent, and has paid on account of said mortgage the sum of $116.28, and on the interest on said mortgage the sum of $35.86, but that said judgments are yet unpaid, but that plaintiff tenders himself ready to pay the same; that he had expended on said property, for mortgage debt and interest, taxes, ground rent, water rent, repairs, and improvements, the sum of $461.04, which is far in excess of the value of the property; that he has established a business there, and has so improved said property that it is peculiarly adapted for his said business; that the defendants have instituted ejectment proceedings against the plaintiff before a justice of the peace, which are a fraud upon plaintiff's rights, and if allowed to prevail will cause him irreparable injury; that defendants have no property whatever, and are utterly irresponsible, as the said mortgage indebtedness and the judgment liens represent the entire purchase money of said property. The prayer of the bill is for specific performance of the alleged agreement, and for injunction "staying said ejectment proceedings until this matter is determined by this court," and for further relief.

A preliminary injunction was granted, enjoining the defendants from proceeding with said ejectment suit until the further order of court. For a period of 16 years nothing more was done, until November 30, 1903, when a decree pro confesso was signed by the court; the defendants being in default for want of an answer. This decree was subsequently rescinded on the petition of defendants and they were permitted to file an answer, which was done on February 11, 1921. The answer denies the alleged agreement and expenditures and impecunious condition of defendants, and that the mortgage and judgments...