Canary v. Wagner

Marbury, C. J., delivered the opinion of the Court. On March 1, 1927, Henry W. Wagner, one of the appellees, leased to Bertha M. Trees shore lot No. 7, Back River in Rossville, Baltimore County, with the improvements, for a term of four and one half years, beginning March 1,1927 and ending on August 31,1931 for the yearly rent of one hundred and fifty dollars. The written lease provided that it “with all its provisions and covenants shall continue in force from year to year after the expiration of the term above mentioned” with a proviso that ⁴¹⁵ either party could terminate at the end of the four and one half year term or of any term thereafter by giving thirty days notice in writing. Both lessor and lessee signed and sealed the instrument, but it was neither acknowledged nor recorded.

The lessee covenanted that she would not assign without the consent of the lessor in writing. She did assign, without such consent, on July 9, 1928, to Fred W. Canary and Mamie Canary, who was his wife. It is alleged in the bill of complaint that Fred Canary died March 5, 1942, and Mamie Canary, the appellant, has continued in possession until the present time. On June 5, 1932, Henry W. Wagner had the property conveyed to his daughter, Mildred Wagner (now Goehler), and on February 11, 1947, Mildred Goehler conveyed it to M. Eleanor Farrell.

On August 15, 1947, M. Eleanor Farrell conveyed to William H. Mummert, who gave to M. Eleanor Farrell a purchase money mortgage for over $2450. Wagner, Goehler, Farrell and Mummert were all made parties defendant to this case, and are the appellees here. The bill of complaint was filed in the Circuit Court for Baltimore County by Mrs. Canary, the appellant, to enforce a paragraph in the lease which reads “It Is Further Agreed, That the said Party of the second part shall have the right to redeem the entire shore property at 6% or ($2500.00) at the expiration of the above four and a half years term mentioned”. The defendants all demurred, the Chancellor sustained the demurrers without leave to amend and dismissed the bill of complaint.

The complainant appeals. The appellees contend that as the lease was assigned without the written consent of Wagner, the assignment was void. The lease itself, however, states that upon the breach of any of the covenants (of which that not to assign was one) the tenancy shall be determined at once without notice and the landlord shall be entitled to immediate possession “provided he shall so elect, but not otherwise” (italics supplied). The landlord did not so ⁴¹⁶ elect, and he and his successors have permitted the appellant-assignee to remain in possession for twenty years, accepting her as tenant under the terms of the lease and permitting her to make many improvements to the property.

It is too late now to raise this point. The owners have waived their rights, and are now estopped from reviving them. The appellees also contend that since the lease was for four and a half