Bamberger v. Johnson

Roberts, J., delivered the opinion of the Court. On the 2nd of April, 1894, the appellants entered into an agreement in writing with the appellee to lease for the term of ten years, beginning on the first of April, in the year 1894, and ending on the first of April, in the year 1904, a lot of ground belonging to the appellee, situate in the town of Cambridge, in Dorchester County, for an ³⁹ annual rent of $30.00 to be paid in equal semi-annual instalments of $15.00 on the first day of January and the first day of July of each and every year during the continuance of said lease; the appellants to have the privilege of purchasing said lot at any time during said term upon payment to the appellee of the sum of four hundred dollars for the same, provided that all rent due the appellee under the terms of said lease, at the time of such purchase, shall be paid in full; said lease also contains a covenant that the appellants will promptly pay said rent as hereinbefore stated, and that if at any time during said term, any one payment shall remain in arrears and be unpaid for the period of six months after it is due, the said lease shall be void and of no effect, and the appellee may enter and resume full possession thereof, with the right to distrain or otherwise collect all rent due and unpaid; the appellants further covenant to keep the property in good repair and not to haul or allow to be hauled sand or anything else that may cause the shore to wash, unless they shall wall the shore with stones or logs. These are substantially the facts to be found in the contract of lease, which constitute the ground of this controversy. On the 5th of August, 1896, the appellants filed their bill in the Court below asking the passage of a decree to compel the appellee to complete said lease by acknowledging the same, or a similar paper, before a Justice of the Peace of said county, together with the appellants, in order that they might have the same recorded and thus protect themselves against any fraudulent conveyance of said property to an innocent purchaser, as well as be protected against any attempt at law, on the part of the appellee, to dispossess them of, and praying for general relief.

The appellee on the 19th of September, 1896, answered said bill, admitting the execution of and the covenants contained in said lease, which is exhibited with their bill as part thereof; but denying generally the other facts set out in said bill, and especially and particularly the charge in said bill alleging fraud in the execution of said lease, or in the failure to acknowledge the ⁴⁰ same according to law, and charging the appellant with failure to pay the rent and taxes and to observe the several covenants as set out in said lease and denying the waiver of forfeiture for the non-payment of the rent which became due under said lease on the 18th day of January, 1896, and was not paid within the six months thereafter, when, on the 16th of July, 1896, the appellee notified the appellants to quit the property and deliver possession of the same. The appellee further says the appellants have entirely failed to observe their covenant that they would keep the property in good repair, and that, in direct violation of their said contract, they have constantly hauled sand from the shore, without walling it with stones or logs, to protect it from washing. The only testimony in the record is given by John W. Bamberger, one of the appellants, and Joseph H. Johnson, the appellee, each of whom testifies in his own behalf and upon his own offer. The bill in this case is in the nature of a bill for specific performance.

Yet the effort here is primarily to compel the appellee to formally acknowledge the lease that the same may be recorded and then to compel its specific performance. There is, however, nothing in the lease itself or in the proof offered tending to support such a demand, or which would justify a Court of Equity in lending its aid to accomplish. The appellants filed with their bill the original lease or contract and it is offered as part of the testimony of the appellant who testifies in the cause, and is found to be such a paper as hereinbefore described, without formal acknowledgment and simply signed and sealed by