Boyle v. Peabody Heights Co.

Miller, J., delivered the opinion of the Court. The appellee a corporation duly incorporated under the laws of this State, being the lessee for a term of ninety-nine years renewable forever, of certain real estate situated in Baltimore County, on the 5th of June, 1872, subleased several parcels of the same to Adam J. Gosman. ⁶²⁷ Afterwards on the 29th of June, 1876, Gosman assigned and conveyed these premises to Juan Boyle, the appellant, and he, on the 6th of September, 1876, filed a hill against the appellee, praying that the latter may he decreed to executed a new sub-lease to him of these premises. The main ground upon which this relief is asked, is that a covenant contained in the original suh-lease to Gosman, stipulates and provides for the execution of such new. lease to his assignee. The covenant relied on is in these terms : “ and also that at any time during the continuance of this demise the Peabody Heights Company of Baltimore City aforesaid, or its assigns, shall and will, on payment to it or them of ten dollars as a fine therefor, execute and deliver, or cause and procure to he executed and delivered to the said Adam J. Gosman, his executors, administrators or assigns, at his or their request and cost, a new suh-lease of the above demised parcel of ground and premises or either of them, reserving to the said lessor a reversion of one day therein: which new suh-lease shall he subject to the same rents, and containing the like covenants as are herein contained, and in particular a covenant for perpetual renewments, so that this lease and the estates created thereby, and each and every of them may be renewable and renewed from time to time forever.” The appellee admits its obligation under this covenant to execute a new lease, to take effect after the expiration of the term originally created, hut denies that it is hound to execute a new lease such as the appellant demands, to take effect immediately and covering the same period of. time as that covered by the original term.

It contends, and there can he no question of the soundness of the position, that if the new lease demanded should he executed' without making Gosman a party thereto, the original lease would be destroyed, and he would be absolved from his covenant to pay the rent, as well as from the other covenants on his part which that lease contains, whereas, if no such ⁶²⁸ new lease be executed, be will remain liable on these covenants notwithstanding his assignment to the appellant. It is by reason of this effect of the new lease demanded the appellee resists its execution, and contends that by the true construction of the covenant relied on, no such obligation is imposed on the lessor. This requires us to ascertain the true meaning in this respect of the covenant in question. Like all other contracts the real intention of the parties to it must control its interpretation.

The lease in which this covenant is contained conveys the property for all the rest and residue, save one year, of the term of years yet to come and unexpired of the lessor therein, and reserves a yearly rent of $159.87£, on each of the parcels of ground thereby demised, and this rent, Grosman, the lessee covenants to pay, as well as all taxes or other assessments levied or to be levied or charged on the premises, or on the rents above reserved. It also contains a covenant, “that whenever either of the lots hereby demised are improved by the erection of such building or buildings as maybe approved of by said company, and required by the conditions of this lease the company will execute to the said Adam J. Grosman, his executors, administrators or assigns, a. good and sufficient original lease of said lot or lots of ground so improved, subject to the rent hereby reserved, with a covenant of renewal forever in the usual way such leases are prepared in the City of Baltimore, with a covenant also in said lease for the redemption of each of said rents at any time within eight years from the first day of January, 1872, on the payment of” a specified sum. Then follow provisions as to what character of buildings shall be erected, of what size, and how located. From 'these terms and conditions it appears the property was unimproved at the time this sub-lease was