Connaughton v. Bernard

Boyd, J., delivered the opinion of the Court. This case comes before us on an appeal from the action of the Court below in refusing to rescind an order of ratification of a sale made by Alfred D. Bernard, trustee, to James Connaughton, the appellant’s intestate. Mr. Bernard filed a report in which he stated that he had offered the property at public auction, but not having received an adequate bid had withdrawn it, and that Connaughton had made an offer in writing for the three properties embraced in the decree, which are referred to in his offer as “ Nos. 625 and 627 Light street, and No. 100 PI York street, the lots to conform in size and be subject to the ground rents as set forth in the advertisement of said property in the ‘Sun’ of November 7, 1895, a copy of which is hereto affixed.” The sale thus reported was finally ratified, after due publication of the order nisi, no objections having been filed. Ten days afterwards Connaughton filed a petition asking the Court to rescind the final order of ratification, on the ground that the titles to the three lots were defective and the sale was inadvertently ratified.

The appellant filed “ additional exceptions to the sale,” James Connaughton in the meanwhile having departed this life. That was done ⁵⁹⁰ with leave of the Court, and the exceptions, as they were called, were treated as additional reasons for rescinding the order'of ratification of the sale. When a sale has been ratified, after publication of the order nisi in accordance with the established practice of Courts of Equity, the facts relied on by one seeking to have the sale set aside must be very clearly established and must be of such character as strongly appeal to the conscience of the Court. But when the Court can see that injustice will be done a purchaser by compelling him to take the property, it has the power to rescind the order of ratification, if the proceeds of sale are still within its control, provided the purchaser has not by his conduct or neglect deprived himself of the right to .relief.

We will therefore inquire into the circumstances surrounding this case to ascertain whether the appellant should be relieved of the purchase made by his intestate. A number of objections have been urged to the titles and we will consider them in the order they are presented in the appellant's brief. The two lots fronting on Light street are designated on the plat filed in the casé as Nos. i and 2. No. 1 is on the northeast corner of Light and York streets, having a front of fifteen feet six inches on the former and forty-eight feet on the latter.

No. 2 adjoins No. x on the northerly side, fronts thirteen feet on Light street, and has a depth of forty-eight feet. In the rear of those two lots there is an alley three feet wide, and just beyond the alley is lot No. 3, fronting fifteen feet on York street, and having a depth of sixty-seven feet and six inches, running along the alley for its whole depth. Nos. 1 and 2 are parts of a lot which fronted sixty-seven feet and six inches on Light street, with a depth of fifty-one feet on York street and which was leased in 1829 by Louisa Armistead to David Carson and David Taylor, for ninety-nine years, renewable for ever, at the annual rent of $135.00. Afterwards Carson and Taylor subleased the portion of the original lot contained in No. 1 at the annual rental of $31.00.

They also subleased ⁵⁹¹ the part of the original lot included in No. 2 at an annual rental of $26.00, and this sublease became vested in one Jane Bell, who, together with her husband, executed on August 8, 1865, another lease of that lot, reserving the annnal rent of $60.00. The several subleases contained covenants against any other or greater rent than that reserved by them. It is insisted on the part of the appellant that the advertisement of the lots did not properly state the facts and that the titles to these two lots are not marketable, or such as a Court of Equity will compel a purchaser to take, because they are subleases and not original leases. The only reference to the rent in the advertisement is “ this property (referring to Nos. 1 and 2) which will be sold as a whole, is subject as to the first lot to an annual ground rent of $31.00, and as to the second lot an annual ground rent of $60.00.” It is evident that the original lessees undertook to apportion the rent, as they subleased lots 1 and 2 at the same rate the whole lot was leased to them—two dollars per front foot.

While there is no positive evidence in the record that Louisa Armistead consented to such an apportionment, there is a circumstance which tends to show she had acquired some interest in the alley which Carson and Taylor laid out on the property which she had leased to them. The agreed statement of facts says, “ It is also agreed that in the original lease of lot No. 3 the right to use the 3-foot alley was granted by Louisa Armistead.” The testimony of Mr. Gill shows that that lease was made March 20, 1847. She had in 1829 leased to Carson and Taylor fifty-one feet on York street, which included the land embraced in the three-foot alley. When Carson and Taylor made the subleases they called for the alley and only included forty-eight feet in depth along York street in their leases.

It is therefore altogether probable that Louisa Armistead did make some arrangement with the original lessees by which she acquired some interest in the alley, and acquiesced in the apportionment of rent made by them. This circumstance must be considered in connection with ⁵⁹² the fact that there is not the slightest evidence or suggestion that any more rent was ever exacted or demanded from the holders of those lots, by the owners of the original reversion, than the sums named in the leases made by Carson and Taylor.' On the contrary, it is admitted that the ground rent of $31.00 on lot No. 1 has been collected by the successive owners of the original reversion for more than twenty years and that they collect the remainder of the original rent from one Mary Ann Brack’s estate, which collects in turn four subrents of $60.00 each from the four houses and lots on Light street, just north of the corner lot, and included within the bounds of the original lease from Louisa Armistead to Carson and Taylor. Each of said four lots has a front of thirteen feet and the leases for them contain covenants against the payment of any other or greater rents. There cannot therefore be any such substantial objection urged against the title to these lots by reason of the fact that they are subleases as would prevent them from being marketable.

The ground rent system that has prevailed so largely in this State, especially in the city of Baltimore, has been productive of much litigation and in recent years of considerable legislation, looking to the correction of some of the evils and troubles that have arisen, but if this Court sustained the position taken by the appellant in reference to these lots it would create greater confusion, as we know from the cases that have been in this Court, as well as the history of the city, that some of the most valuable property in Baltimore is held under subleases and that there is no record evidence that the rents reserved in many of them have ever been apportioned. In Speed, Trustee, v. Smith, 4 Md. Chy. 299, the advertisement stated that the property sold was subject to a ground rent of “only ten dollars.” The purchaser excepted to the sale and produced a lease of property of which that sold was a part, wherein a rent of twenty dollars per annum was reserved. There was no evidence that the particular parcel sold was ever held for the twenty dollars rent, and ⁵⁹³ the Chancellor decided that the mere production of such a lease, which was over fifty years old, did not sustain the exceptant’s case without some proof that the rent reserved had been exacted from the owner of the part sold. But, on the contrary, he was of the opinion that there was an apportionment of the original ground rent which had been acquiesced in by those claiming under the original lessor.

That case was affirmed in Bcmntz v. Reddington, 80 Md. 622 , where, as there was evidence to show that for more than fifty years no other rent than that named in the sublease had been demanded, the Court held that it was reasonable to conclude that the lot was not liable for any other rent and that there had been an apportionment of the rent reserved upon the original tract of which the lot in question was a part. So, in this case,- without some evidence to the contrary, we must assume that the owners of the original reversion have acquiesced in the apportionment of the rent originally reserved between these five lots. The fact that a greater rent has been reserved on lot No. 2 than there was in the first sublease cannot materially injure or affect the holder of the present leasehold interest. He can see that out of the $60 to be paid by him, the $26 reserved by Carson and Taylor is paid to the holders of that or the original reversion.

The covenants in the leases fully protect him from any loss on that account and the possibility of additional inconvenience or trouble that he might have for his own protection would not be such a burden as to entitle him to be relieved from a purchase such as that made by Connaughton. One of the deeds in the chain of title for lot No. x, was executed by John V. L. Graham, who was administrator of Frank M. Hopkins and also of Ida S. Hopkins. It is objected to because it was simply signed John V. L. Graham, administrator, and only signed once. It' would have been more regular for Mr. Graham to have signed twice—as administrator of each of his intestates—but the recitals show that as administrator of Frank M. Hopkins he had, under ⁵⁹⁴ authority of the