Carmine v. Bowen

McSherry, C. J., delivered the opinion of the Court. This record has been brought up from the Circuit Court for Baltimore County sitting as a Court of equity. By an order of that Court an injunction which prohibited the appellant, the landlord, from interfering with the appellee, the tenant, in the harvesting and removal of a wheat and rye crop was made perpetual, and from that order this appeal was taken. The facts which need be stated are briefly these: In the month of December, nineteen hundred, the appellant rented to the appellee a farm situated in Baltimore County, and containing about two hundred and seventy acres, for a term of three years to begin on the first day of March in the following year, at and for a money rent of seven hundred dollars annually.

By the terms of the written agreement the appellant stipulated to furnish three hundred dollars worth of bone fertilizer each year, and the appellee bound himself “to farm the fields in rotation in a proper manner.” When the appellee took possession of the premises in the spring of nineteen hundred and one there was no wheat or rye crop growing on the farm, the former tenant having failed to sow either the one or the other. In August, nineteen hundred and three, the appellant gave to the appellee a notice in writing to remove from and quit ²⁰⁰ the farm on the first day of the ensuing March, that being the day upon which the term was to end. A few days after that notice had been given the appellant wrote a letter to 'the appellee in which he stated “I understand that you are making preparations for sowing your fall cr.op which will not mature until after the expiration of your lease of the farm. * * * I'understand also that it is not your intention to sow any grass seed. I do not admit that in any event you will have the right to remove any crops after the expiration of -your lease, and will stand on my rights in this matter, whatever they may be.

But I particularly warn you, that I will hold you strictly to the consequences of your failure to sow grass seed, and if it should prove that the failure on your part to sow grass seed will defeat your right (if you .otherwise have it, and which I do not admit, as I have above stated) to remove the outgrowing crops after the term, you will have yourself to blame for it.” In the latter part of May, nineteen hundred and four, the appellant sent another letter warning the appellee not to undertake to cut or take away any of the crops then on the farm ‘‘or which shall hereafter mature thereon.” Prior to the date of this last letter the term of the appellee as tenant had expired and he had in obedience to the notice given him and pursuant to the stipulations of the lease, vacated the farm on March the first. The appellee sowed in the fall of nineteen hundred and three—that is, in the fall preceding the expiration of his tenancy on March .the first, 1904—about fifty acres of wheat and twenty acres of rye, which matu red and ripened after the end of his term. It further appears from the bill, the answer and the testimony, and it is therefore undisputed, that after about six acres of wheat had been sowed in the fall of 1903-the appellant went to the field and inspected the work and inquired how much timothy was being sowed, and' when told by the appellee that the quantity was a strong peck to the acre, expressed himself as satisfied. At the same time the appellee said to the appellant, “I don’t anticipate- any trouble in the cutting of my crop,” to which the appellant made no reply.

The crop thus alluded to was the one now in contro ²⁰¹ versy. There seems to have been some jar or friction about the sowing of grass seed and about the quality of the fertilizer furnished and the unwillingness or supposed unwillingness of the tenant to sow the grass seed, doubtless induced the landlord to claim the away going crop. Indeed, this is practically admitted by the appellant, for he was asked: “When did you make up your mind that Bowen should not come back and harvest that crop?” and he answered: “The very hour he told me he would not sow grass seed.” It is reasonably clear, then, that the intention of the landlord to claim the crops was. the direct result of the tenant’s intimated purpose not to sow grass seed; and whilst the landlord did not admit the right of the tenant to return after the expiration of his lease and secure the away going crops, he strongly implied in the letter of August before the crops were sown, that a failure to sow grass seed would defeat the tenant’s right to remove the crops after the term had ended. But the tenant did sow the grass seed, and at the very time he was putting it in the ground in accordance with the insistence of the landlord he remarked to the latter that he, the tenant, anticipated no trouble in cutting the crop he was then sowing; to which remark the landlord made no reply.

When the appellant refused to allow the appellee to enter upon the premises and to harvest the crops in the summer of 1904, though every dollar of the money-rent had been paid by the tenant before the expiration of the term, the appellee filed a bill in the Circuit Court for Baltimore County in which he prayed for relief by way of injunction to restrain the appellant from interfering with his entering upon the premises and his harvesting and removal of the crop's. The tenant bases his claim to the crops upon the terms of the lease and upon the custom of the country under which an away-going tenant is allowed, it is asserted, when the lease is for a definite period, to return and secure the crops sowed by him during the last year of his tenancy though they mature after the term has expired. There is another ground for relief which was not relied on in the bill nor pressed at the argument but to ²⁰² which we will allude later on. The appellant, the landlord, denies that the tenant is entitled to the crops in question under any term or provision of the lease.

He asserts that there is no such custom of the country as is set up by the tenant and he, in addition, expressly challenges the jurisdiction of a Coúrt of equity to decree relief in this proceeding. The general doctrine of the common law is well settled that where the renting is for a time certain the tenant is not entitled to the outgoing crops, which mature after the termination of his lease, unless by the custom of the country or by express agreement with his landlord. Taylor's Land. and Ten., secs. 534-536; Dircks v. Brant, 56 Md. 502 . The reason for the rule as given by Lord Mansfield in Wigglesworth v. Dallison, 1 Doug. 201 , is because it was the tenant’s own folly to sow when at the time of sowing he knew that his-term would expire and he would be out.of possession before he could reap.

But the reason of the rule, and hence the rule itself, ceases when a general custom to the contrary prevails, or when ah express agreement secures to the tenant the right to enter and cut the crops after the expiration of the term; because when such a custom prevails it is read into the contract of leasing and the latter must be interpreted in the light of that custom, and where there is an express contract reserving to the tenant the right to remove the away-going crops the rule of law is by the agreement of the parties waived and dispensed with. Inasmuch as it is the folly of the tenant to sow when he knows he cannot reap,since he has no interest in the land nor in anything which savours of the realty after the expiration of his term of tenancy, he has no right to enter and remove the crops which mature after his tenancy has ended, unless that right is reserved to him by operation of law, by custom or by express agreement. If the tenancy is of uncertain duration the reason of the rule does not apply, because when he sows he does not definitely know that- his term- -will end before the maturing of the crops. He would not be guilty of folly in sowing'in such an instance. ' In such an instance he is entitled to emblements.

Taylor Land. and Ten., ²⁰³ sec. 534. The case of Kelly v. Todd, 1 W. Va. 197 , cited to sustain the right of the tenant to remove the away-going crops after the termination of a lease for a definite period is not in accord with Brant v. Dircks , 56 Md., supra; because owing to the peculiar terms of the lease in Kelly v. Todd , the Court held that there was an implied right accorded to the tenant to remove the crop, whilst in this State under the ruling in Brant v. Dircks , an agreement to be effective in securing to the outgoing tenant the crops which mature after the tenancy has ended must be an express agreement. The only terms contained in the lease before us which are relied on to evidence an agreement on this subject are found in the sentence which reads: “Said Bowen agrees to farm the fields in rotation in a proper manner.” However strongly that clause may imply that the tenant bound himself to sow the wheat and rye in the fall prior to the end of his lease, it does not, we think, embody an agreement on the part of the landlord that he should be entitled to enter upon the premises and har • vest and remove the crops after the tenancy had ceased to exist. It certainly does not amount to an express agreement to that effect.

Whilst there is a mass of evidence on the subject of custom, the testimony is by no means satisfactory, and there will be no occasion to determine whether it is sufficient or inadequate to establish the alleged custmn, inasmuch as there is another ground upon which an affirmance of the decree or order making the injunction perpetual may be safely rested. Though the general rule as to the right of the outgoing tenant who holds for a definite term to return and remove the crops which were sowed by him during the term but which matured after the end of the term, is as stated above, yet though there might be no express agreement and no custom reserving that right to him, there may, nevertheless, be other