Brager v. Bigham

Burke, J., delivered the opinion of the Court-. The appellees are leasehold owners of the property known as No. 233 North Eutaw street in Baltimore City. The property is subject to an irredeemable annual ground rent of twelve dollars. On January 24th, 1888, John Plummer Big-ham and others, the leasehold owners, leased the property to Joseph Sigmund.

The lease recited that: “The said parties of the first and second part do hereby lease unto the said Joseph Sigmund the three-story building, Number 233 N. Eutaw street, near Saratoga street, in the city aforesaid, said building fronting about 22 feet on the east side of Eutaw street, for the term of one year, commencing on the first day of December, eighteen hundred and eighty-seven, and expiring on the thirtieth day of November, eighteen hundred and eighty-eight, at the annual rental of twelve hundred dollars, payable in monthly installments of one hundred dollars each, on the first day of each and every month, and at the expiration of said term which occurs on the first day of December, eighteen hundred and eighty-eight, the aforesaid parties of the first and second part, his, her and their successors, executors, administrators and assigns, do and he and they do hereby lease unto the said Joseph Sigmund, the hereinbefore described premises for the term of ten years, commencing on the said first day of December, eighteen hundred and eighty-eight, and o\-< wing on the thirtieth day of November, eighteen ¹⁵⁰ hundred and ninety-eight (18981, at the annual rental of sixteen hundred dollars, payable in monthly installments of one hundred and thirty-three dollars and thirty-three cents ($133.33) each, on the first day of each and every month during’ the continuance of this demise accounting from the first day of December, eighteen hundred and eighty-eight.” This lease was assigned to the appellant, Albert A. Brager. Prior to its expiration, the lessors on March 7th, 1896, executed and delivered to Brager, who was then in possession of the premises under the assignment referred to, a new lease of the property for a term beginning November 30th, 1898, and ending April 2nd, 1911, at an annual rent of $2,000.00. On the 16th of March, 1901, the lessors and the appellant entered into a writing under seal called in the record a “lease and agreement.” It inferred to the lease of 1896 and to the fact that it would expire in April, 1911, and that it had been agreed between the parties that the said lease should be extended until December 4, 1915. It then provided: “That in consideration of the premises and of the sum of one dollar, the said parties hereto do hereby extend the aforesaid lease of said premises until the fourth day of December, in the year nineteen hundred and fifteen (1915), such extension to be subject to all of the terms, conditions and stipulations contained in said original lease dated the seventh day of March, eighteen hundred and ninety-six, and recorded as aforesaid among the Land Records of Baltimore City in Liber.

R. O. No. 1607, folio 195, etc. And it is hereby agreed that if the said Brager should tear down the present building on said premises and erect another in its place, at said Brager’s expense, said Brager hereby agrees to pay the yearly increase of taxes over and above the present assessment on the valuation of said property if such increase of assessment is caused by reason of the erection of said new ¹⁵¹ building by said Brager, it being understood, however, that said Brager shall not be prejudiced hereby by reason of an increase of the tax rate in Baltimore City.” On February 23, 1906, the lessors granted to Brager, his personal representatives and assigns, “the right and option of a lease of the premises known as number 233 North Eutaw street, in Baltimore City, for the term of years commencing on the fourth day of December, nineteen hundred' and fifteen (1915), and to continue for the period of twenty (20) years thereafter, said lease to be subject to all of the terms, conditions and stipulations contained in an original lease between the parties hereto’ (and Frank R. Ford, who is now deceased), dated the seventh day of March, 1896, and recorded among the Land Records of Baltimore City in Liber R. O. No. 1607, folio 195, etc., with the exception of the giving of bond and with the exception of the increase of rent as heroin set forth.” In consideration of the execution of this option Brager agreed to pay a rental of twenty-one hundred dollars per annum instead of two thousand dollars as provided in the extension of the lease dated March 16, 1901. Brager was required to avail himself of the option within a period of thirty days from its date, and he did avail himself of the option within the time limited, and on March 16, 1906, a new lease and agreement were executed. The portions of this instrument, which is necessary for the purposes of clearness to quote, are as follows: “This lease and agreement, made this sixteenth day of March, in the year one thousand nine hundred and six, by and between John Plummer Bigham, substituted trustee of the will of John Bigham, deceased, of Baltimore City, in the State of Maryland, party of the first part, and John Plummer Bigham, of the City of Baltimore, in the State of Maryland; Olive Virginia Bigham, of the City of Baltimore, in the State of Maryland, and Barbara E. Ford, of Fairfax, ¹⁵² Fairfax County, in the State of Virginia, parties of the second part, and Albert A. Brager, of the City of Baltimore, in the State of Maryland, party of the third part. Whereas, the said Albert A. Brager, on the seventh day of March, in the year eighteen hundred and ninety-six, leased from the parties of the first and second parts (and Frank R. Ford, now deceased), the premises known as number 233 North Eutaw street, in Baltimore City, which said lease continues until the second day of April, in the year nineteen hundred and eleven, said lease being recorded among the Land Records of Baltimore City in Liber R. O., No. 1601, folio 195, etc.; and whereas on the sixteenth day of March, in the year one thousand nine hundred and one, the said named parties executed to the said Albert A. Brager a lease on said premises known as number 233 North Eutaw street, in Baltimore City, for a term of years commencing on the second day of April, in the year nineteen hundred and eleven, and ending on the fourth day of December, in the year nineteen hundred and fifteen; and whereas the said parties of the first and second parts have agreed to execute a new lease to the said Albert A. Brager on said premises known as number 233 North Eutaw street, in Baltimore City, subject to the terms and stipulations hereinafter set forth. “Now, therefore, this agreement witnesseth, That for good and valuable considerations, the said parties of the first and second parts do hereby demise and lease unto the said Albert A. Brager, his personal representatives and assigns, the building and premises in Baltimore City, known as number 233 North Eutaw street, for the term of years commencing on the fourth day of December, in the year nineteen hundred and fifteen, and ending on the third day of December, in the year nineteen hundred and thirty-five, at the rental of twenty-one hundred dollars ($2,100. — ) per annum shall be payable monthly in even and equal installments of one hundred and seventy-five dollars ¹⁵³ ($175. — ) each on the fourth day of each and every month during the continuance of this lease. * * * “Said Brager hereby agrees that between this date and the fourth day of December, in the year nineteen hundred and fifteen, he will tear down the present building on said premises and erect a new building thereon, at his, the said Bragers own cost and expense, said new building to cost not less than the sum of twenty thousand dollars ($20,000).

And it is agreed that if the said Brager should not tear down the present building on said premises, and erect a new building thereon as aforesaid, between this date and the fourth day of December, in the year nineteen hundred and fifteen, he will pay to the said John Plummer Bigham, substituted trustee of John Bigham, deceased; John Plummer Bigham, Olive Yirginia Big-ham and Barbara E. Ford, the cash sum of ten thousand dollars ($10,000), on the fourth day of December, in the year nineteen hundred and fifteen, if he does not erect said building, which sum of ten thousand dollars ($10,000) shall be in lieu of the liability of said Brager to erect said building.” The appellant, claiming the right to redeem and extinguish the rent reserved in the lease of March 16, 1906, gave the required notice of one month to the landlords and lessors of his desire to redeem, and tendered the sum of $35,000.00, —-that being the sum of money equal to the capitalization of the rent reserved at six per cent. — and all accrued rent, and demanded from the appellees the execution of a deed at his expense. They declined to execute and deliver a deed for the premises. The appellant thereupon filed in the Circuit Court of Baltimore City the bill in this ease, in which he prayed, “'that said defendants may be required by a decree of this Court to execute and deliver unto your Orator a deed of the lot hereinbefore described, under the provisions of Article 53, Section 24, and Article 21, Section 93, of the Code of Public General Laws of Maryland, to the end that said annual rent of $2,100 shall be eliminated.” ¹⁵⁴ The answer of the appellees admits the title of the plaintiff under the leases and agreements mentioned, and they also admit the service of notice given by the plaintiff of his desire to redeem,' and that they refused to execute a deed for the premises. They alleged that the paper writing dated March 16, 1906, was an agreement to lease a house to be erected by the plaintiff prior to December 4th, 1915, for a period of twenty years from said last mentioned date, and that until said date arrived it was a mere agreement to lease in the future, and was not a lease or sub-lease within the meaning of the Acts of Assembly; that it does not profess to be a lease or sub-lease of a lot of ground, but only of a home to be built by the plaintiff.

The answer then sets forth the provision, quoted above, of the lease and agreement of March 16, 1906, by which Brager obligated himself to erect a new building, to cost not less than $20,000, prior to December 4th, 1935, or in case of failure to do so to pay in cash to the lessors the sum of ten thousand dollars, and alleged that the “attempt by the plaintiff to redeem the said rent without either building for twenty thousand dollars or paying cash of ten thousand dollars, the consideration of said paper, is a gross fraud upon the said agreement, and will not be countenanced in a Court of Equity, which requires everyone applying to it for assistance to do equity.” The seventh and eighth paragraphs are here quoted: “1. These defendants show that the various acts mentioned and collated in Article 53, section 24 of the Code, are all on pari materia, and all intended to express a public policy against the continuance of long leases, but nowhere to do, as this present bill attempts to, cut up a rent before the same has gone into effect. The present rent is for 20 years from December 4, 1915, and if the prayer of the bill is granted, will be ‘redeemed’ before it ever had any existence, and without paying the consideration of said lease above mentioned, contrary to equity and good consicence. ¹⁵⁵ “8. By Act of Assembly, 1914, Chapter 371, it is provided that the several Acts of Assembly relied on by the plaintiff ‘were not intended to apply and do not apply to leases or sub-leases of property leased for business purposes * * * where the term of said leases or sub-leases, including all renewals thereof provided therein, shall not exceed 25 years.’ That said Act took effect April 10, 1914, and therefore