Abrams v. Sheehan

Stewart, J., delivered the opinion of the Court. We find no error in the refusal of the 2nd and 7th prayers of the avowants. Their right to recover was not a necessary conclusion, from the particular facts enumerated in these prayers. Every other material fact, to make out their case, seems to have been assumed as proved.

The prayers were objectionable on another ground—they assert an erroneous principle as to notice. I.f the avowants had sufficient information to put them on enquiry as to the title to the property they were about to purchase, they are affected with notice. Price avid Bevans vs. McDonald, et al., 1 Md., 403 . The 3rd and 4th prayers of the avowants were properly refused.

Whether the order of the 28th November, 1870, is upon its face, and by its literal expression, applicable to rent already due and in arrear, is immaterial. The true intention of the parties executing the paper, must govern; and its natural import and construction is to be found, not so ⁴⁵⁸ much in a technical adherence to its isolated terms, as from a reasonable interpretation of its provisions, under the circumstances connected with it, éxplanatory of its meaning and purpose. Md. Ins. Co. vs. Bossiers, 9 G. & J., 120 .

This order refers to antecedent orders, which were admissible and necessary to a proper understanding of its meaning, and they must be referred to for that purpose. They all use similar expressions as to the rent, and it is obvious, from their terms and import, they were intended to apply to accruing rent. The 8th and 9th prayers of the avowants were properly refused. They embrace the same questions, and refer alone to the acts and declarations of Susan Schofield, the wife, in regard to the rent.

They assume that notwithstanding the avowants had notice of the orders for the rent, before the date of their mortgage, they are not to be precluded from the recovery of the rent accruing after their purchase. The orders were given to Mr. Fowler by Mr. Schofield, on account of the rents now in controversy, with his wife’s assent and authority, and the money advanced thereon was used by husband and wife in carrying on a hotel. It is stated in Taylor’s Landlord & Tenant, sec. 428, that an order from a landlord on his tenant, to pay accruing rent to a third person, operates as an assignment of such rent, and that the tenant is bound to pay to such person, whether he has accepted the order or not, and notwithstanding a subsequent notice from the landlord not to pay. According to the proof in this case, the obligation of the tenant is, if possible, made stronger, because the orders upon the tenant were not only given to Fowler, but accepted by Sheehan, the tenant, who made himself responsible for the payment of the rent to Fowler, as it accrued, at least so far as Schofield and wife were concerned.

Fowler thus acquired an equitable lien on the rent. Although it was the separate property of the wife, Schofield the husband, as well as his wife, was interested in ⁴⁵⁹ the lease, and acted as the agent of his wife so far as she was concerned. By the term of the lease the receipt of either was authorized for the payment of the moneys arising therefrom. The husband and wife could thus in conjunction manage the property.

Unger and Wife vs. Price, 9 Md., 552 ; Tiernan vs. Poor, 1 G. & J., 216 ; Brundige vs. Poor, 2 G. & J., 1 ; Hall and Hume vs. Eccleston, 37