Cook v. Boehl

Henderson, J., delivered the opinion of the Court. This appeal arises out of the same partition proceeding that was before this court in the case of Cook v. Boehl, 188 Md. 581 , 53 A. 2d 555 . In that case the appeals were from a decree of November 4th, 1946, appointing a trustee to sell the property No. 7-9 E. North Avenue ⁵³⁴ and to receive and collect rentals until the sale, and from; an order of January 6, 1947, determining that the yearly, tenancy of the Paradise Amusement Company was terminated, as to the Boehl interest but not as to the' Cook interest, on December 31, 1946. These rulings were affirmed.

The order also provided that the Paradise Amusement Company should pay to the trustee an amount equal to one-half of the rental specified in the lease for the undivided one-half interest of Fillmore Cook, and a somewhat higher amount, representing the reasonable rental value,- for the undivided one-half interest of Miss Boehl and her associates, after December 31, 1946, until the ratification of sale. On this point we said ( 188 Md. at page 593 , 53 A. 2d at page 561) : “there is no justification for the fixing of rent payable by the lessee other than that agreed upon by the parties.” While the appeals were pending, the Paradise Amusement . Company, through Fillmore Cook its President and counsel, tendered rentals to the Trustee in the exact amount of the rentals payable prior to December 31, 1946, that is to say, $60 per week for the first floor and $65 per month for the second floor. The.

Trustee demanded the increased rentals called- for by the order of January 6, 1947. Cook replied that the appeal bond was adequate security for any additional rentals due under the order appealed from. It appeared, however, that the Trustee was not specifically named in the bond. On March 17, 1947, the Trustee filed a petition praying that the Court pass an order authorizing and directing him to accept the payments tendered without prejudice to his right to collect the increased rentals, should the order be affirmed on appeal.

To that petition, the Paradise Amusement Company, and Cook individually, filed a demurrer on the ground that the Court was without jurisdiction to pass any order pending the appeal, and an answer alleging that the Trustee had already accepted the amount tendered and that such action extended the tenancy for another year at. the same rate. After hearing, the Court passed an-order