Abrahams v. Tappe

Ritchie, J., delivered the opinion of the Court. On the 18th day of December, 1866, Frederick L. Shaffer and wife leased a certain lot on Spring street, in Baltimore City, to one George Feller, subject to an original rent of sixty dollars per annum above all deductions for taxes and assessments then or thereafter to be levied. Among the provisions in said lease contained was the following: “And provided further, that if the said rent shall be in arrear for one year, then the said Frederick Littig Shaffer, his heirs or assigns, may re-enter upon the premises hereby demised, and hold the same as if this lease had never been made.'" In the lease was also a covenant on the part of said Feller, his heirs, executors, administrators and assigns, to pay the aforesaid rent, taxes and assessments. The rent so reserved and the reversionary interest in said lot of ground became vested in the complainant, Margaret E. L. Abrahams, in March, 1871, under the will of said Shaffer, her father, and has remained her property ever since.

On the 16th of December, 1871, George Feller assigned the leasehold interest in said premises to his brother, Charles Feller, who, on the 27th of the same month, as ³²⁰ ■signed, the same to Wilhelmina Feller, wife of the aforesaid George Feller. On the 8th of May, 1878, by deed of mortgage, the demised premises were conveyed by the said Wilhelmina Feller and George Feller, her husband, to a certain Caroline Tappe, to secure their promissory note of that day for -$500, payable with interest two years after date. On the'7th of January, 1879, George. Feller paid the said Margaret' E. L. Abrahams a balance of fifteen dollars on the rent due the 1st of December, 1878; and though he, with the knowledge of his wife, was often afterwards called on for the rent subsequently falling due, neither he nor his wife made any further payments thereof; nor did ■the said Caroline Tappe.

The improvements on the property becoming dilapidated and comparatively worthless, and unfit for habitation, the Fellers abandoned it. After the rent had been in arrear for eighteen months, Mrs. Abrahams, not having been informed of the assignments by George Feller, nor of the execution of the mortgage by him and his wife to Caroline Tappe, by advice of •■counsel, instituted an action of ejectment against the said George Feller to recover possession of the property; and the defendant not appearing, judgment by default was rendered in her favor on the 16th day of September, 1880 ; ■and on the 25th of the same month, having procured a writ of habere facias possessionem, she was placed in actual possession of the premises, the same being wholly -unoccupied. After the lapse of over six months from the date of her re-entry, the original tenant, the. assignees and the mortgagee being alike still in default with the rent, Mrs. Abrahams was instructed by her attorney that she was fully possessed of the fee simple title to the property, and could with safety improve the same. Two houses, together of -the value of about sixteen hundred dollars, were then ³²¹ erected upon it, Mrs. Abrahams' husband advancing the money necessary to build them.

The taxes for the years 1816, 1811, 1818, having been suffered by the Tellers and Mrs. Tappe to remain unpaid, the lot was sold by the city tax collector in November, 1819, the city becoming the purchaser. These taxes were paid and satisfied by Mrs. Abrahams, and the property was thus redeemed. On the 21th October, 1881, default having been made in the payment of the mortgage debt, Caroline Tappe, in accordance with provisions of the local law for Baltimore City, filed her petition in the Circuit Court of that city for a sale of the leasehold interest described in said mortgage, and on the same day a decree of sale was passed as prayed, in which Edward T. Flaherty and John W. H. Fry were appointed trustees to conduct the sale. Thereupon the bill of complaint in this cause was filed, and a temporary injunction granted restraining the sale.

This injunction having been subsequently dissolved, the present appeal was taken. If we could regard the leasehold interest conveyed in the mortgage to Mrs. Tappe by the Fellers as still subsisting, and the mortgage consequently of some virtue and effect as against the same, we should hold that the injunction granted should have been continued until an adjustment was had between the mortgagee and Mrs. Abrahams, as to the claims of the latter frv rent in arrear and for the taxes paid by her. The fact too that the only real value attaching to the leasehold interest, supposing it still to exist,