Cook v. Boehl

Delaplaine, J., delivered the opinion of the Court. The purpose of this suit is to sell for the purpose of partition the lot of ground improved by the Aurora Theatre at 7 and 9 East North Avenue in the City of Baltimore. The suit was instituted on August 22, 1946, by Grace L. Boehl, title holder of an undivided one-half interest in the property, against Fillmore Cook, owner of the other one-half interest, and Catherine E. Cook, his wife. Miss Boehl alleged in the bill of complaint that the Paradise Amusement Company, a Maryland corporation, is the lessee of the entire first floor of the building, except the store room, at a rent of $60 per week, and the second floor at a rent of $65 per month, while the store room is leased to others at $75 per month.

She asked the Court to appoint a trustee to sell the property and a receiver to collect the rents until the ratification of sale. ⁵⁸⁶ Cook, in answering on September 5 the prayer for receivership, averred that the Paradise Amusement Company is “a yearly tenant with a tenancy expiring on December 31st in each and every year”; but in his answer on September 23 to the bill of complaint, he averred that the company is “a tenant for a term of years.” He conceded that the real property cannot be divided in kind without loss or injury, and that it should be sold when the proper parties are before the Court; but he asserted that Miss Boehl, who is employed as a secretary in the law offices of Rome and Rome, is merely a nominal grantee of the one-half interest, while the real owners are Edward L. Ward, H. Paul Rome and Morton E. Rome. He claimed that the fixtures in the theatre are not a part of the real estate. He also filed on September 23 a cross-bill praying the Court to appoint a trustee to sell the real estate, on condition that the fixtures, including the marquee, electric signs, the ticket booth, the air conditioning system, and 414 theatre seats, are not included in the sale. On September 25 Edward L. Ward and the Romes petitioned the Court for leave to intervene in the case.

They admitted that they are the real owners of one-half interest, and that Miss Boehl is merely a nominal holder of the title. After they were made parties complainant, they adopted the allegations of Miss Boehl’s bill of complaint. On October 25 the Paradise Amusement Company prayed for permission to intervene. After this corporation was made a party defendant, it filed an answer, signed by Fillmore Cook, both as president and solicitor, alleging that the Aurora Theatre was built expressly for it in 1910 by Eugene Cook, now deceased, Fillmore’s father; that it has occupied the property continuously since that time; that its lease does not expire until December 31, 1949; and that it had given notice to Ward and the Romes of its intention to redeem its leasehold interest, and hence no sale of the property is necessary. ⁵⁸⁷ On November 4 the Court decreed that the property is not susceptible of division in kind without loss or injury to the parties interested, and appointed J. Gilbert Prendergast trustee to sell the property.

The Court authorized the trustee to collect the rents until the ratification of sale, and declined to appoint a receiver. The Court also determined that the Paradise Amusement Company has been a tenant from year to year since December 31, 1939, and is not entitled to any right of redemption. Both Cook and the company appealed from the decree. On November 12 the trustee petitioned the Court to instruct him regarding the proper amount of rent to collect, the date when the theatre lease expires, and the ownership of the fixtures.

On December 3 the Court, recognizing the difficulty of the questions that had arisen, appointed Roszel C. Thomsen solicitor for the trustee. The Court also passed an order on the same day to clarify the provision in the decree for the advertisement of the sale. Originally there were four shareholders of the capital stock of the Paradise Amusement Company. Eugene Cook owned 25 shares, while the remaining 75 shares were held by three of his sons, Harry, John and Fillmore.

When Cook died in 1916, his widow, Mary M. Cook, became the sole owner of the real estate and his 25 shares. Upon her death in 1920, her nine children, Eugene, Jr., Harry, Mamie, William, Barbara, John, Fillmore, Frank and Florence, became the owners of the property and her stock. In 1929 Frank sold his interest in the property and stock to the other eight owners. Upon Harry’s death, his widow, Lula, became the owner of his interest in the property and the stock.

In 1931 Lula, John and Fillmore bought from all the others their entire interest in the property and the stock. In 1933 Lula sold her interest in the property and the stock to Fillmore Cook and Florence Evelyn Cook, John’s widow, who thus became the sole owners of the property. By mutual agreement Fillmore became the owner ⁵⁸⁸ of 49 shares of stock,, his wife 2, and Florence Evelyn Cook 49. Florence Evelyn Cook died in 1943, leaving her estate to her daughter, Audrey Louise Hollyday, upon condition that if she should decide to dispose of her interest in the property and her 49 shares of stock, she must first offer it to her Uncle Fillmore for $20,000.

Mrs. Hollyday filed a caveat to the will, and the will was held void by the Superior Court of Baltimore City. The ruling was affirmed by the Court of Appeals. Cook v. Hollyday, 186 Md. 42 , 45 A. 2d 761 . On August 16, 1946, Mrs. Hollyday, having inherited her mother’s one-half interest in the real estate and her 49 shares of stock unconditionally, sold the one-half interest to Grace L. Boehl, but kept her 49 shares of stock.

In September Miss Boehl notified the Paradise Amusement Company that the tenancy would terminate on December 31. On January 6, 1947, the Court, ruling on the questions posed by the trustee, passed an order giving the following instructions: (1) Miss Boehl’s notice to the lessee in September, 1946, terminated the lessee’s tenancy as to her one-half interest on December 31, 1946, but did not terminate the tenancy as to Cook’s interest, with the result that after that date the lessee became a cotenant with Miss Boehl; (2) the trustee should sell the property free and clear of any tenancy or right of possession of the lessee; (3) the rent to be paid by the lessee for Miss Boehl’s interest after December 31, 1946, until the ratification of sale shall be $225 per month; and the rent to be paid by it for Cook’s interest shall be $30 per week for the first floor, excepting the store room, and $32.50 per month for the second floor; (4) the fixtures shall remain parts of the realty to be sold by the trustee; (5) the property shall be sold subject to the lease of the store room held by Jacob Silberman and wife, trading as Milton’s Men’s Shop; and (6) the trustee shall proceed to sell the property unless a supersedeas bond in the penalty of $10,000 shall be filed by any party appealing. ⁵⁸⁹ On January 22 the Paradise Amusement Company appealed from the two orders of December 3 and the order of January 6. On January 27 Cook entered similar appeals. While the appeals from the orders of December 3 were not taken within 30 days, we take occasion to say that appellants invoked the aid of the Court and imposed upon the trustee duties not ordinarily imposed in a partition suit.

The Court had inherent power to appoint an attorney to serve as the trustee’s solicitor in this case. It is an unquestioned rule that when a trustee in a court of equity finds it necessary to obtain legal assistance in the management of the trust estate, the court will allow him such reasonable fees as he may be required to pay in properly taking the advice and procuring the direction of counsel. Laroque v. Candolle, 4 Md. Ch. 347 . The Maryland partition statute provides that if any land or any right, interest or estate therein cannot be divided without loss or injury to the parties interested, the court of equity may decree a sale thereof and a division of the money arising from such sale among the parties according to their respective rights.

Code, 1939, art. 16, sec. 159. Under this statute the Circuit Court had authority to decree the sale of the real estate owned by the tenants in common, and to pass upon the issues raised by Cook and the corporation of which he is president. The corporation voluntarily intervened in order to assert its claims and to secure an adjudication as to the nature of the tenancy, its right to redeem, and the ownership of the fixtures. It was not until after the decree was entered that it challenged the jurisdiction of the Court.

Undoubtedly they cannot now object to the jurisdiction of the Court to pass upon questions which they prayed the Court to decide. It is true that a bill for the sale of realty for the purpose of partition is not designed to try titles or to determine who are the owners of the estate as between adverse claimants. The object of such a suit is to make a sale for the benefit of the owners of the property. ⁵⁹⁰ The defendants with a common interest are summoned, not to litigate a denial of their title, but to be heard upon the prayer to sell the property. Cambridge Discount Corporation v. Board of Education of Dorchester County, 181 Md. 455 , 30 A. 2d 753 .

However,