Cramer v. Baugher

Constable, J., delivered the opinion of the Court. William A. Cramer, on April 18th, 1913, alleging that he was a judgment creditor of Michael S'. Baugher and Nhoda V. Baugher, his wife, and that the Sheriff of Frederick ²¹⁴ County, by virtue of writs of fi. fa. issued upon said judgments, had levied upon the personal property of the defendants, but because of the inability of the Sheriff to transfer title to the property, under the executions, because of the lien created by a prior mortgage or a bill of sale, of the same property, filed his bill praying, the Court to appoint a trustee to sell the property and apply the proceeds thereof to the payment of said judgments after first discharging and paying-off the lien created by said mortgage or bill of sale. Although the docket entries show that a demurrer was filed to this bill no action apparently was taken in reference to it, and on July 29th, 1913, the B'aughers filed an answer, and no further action was: taken until March 9th, 1915, when the Court granted the prayer of a petition filed by W. Plummer Bird and Claudius H. Bird, co-partners, trading- as W. P. Bird & Co., making them parties plaintiff “with the right to file such necessary papers in said cause as they may deem right and proper, looking to the protection of their rights as landlord of the defendants.” On the same day Bird Bros, intervened by filing a petition in which they alleged that the Baughers were tenants of their farm and were indebted unto, them for one year’s cash rent, and prayed the Court to appoint a trustee to sell the personal property of the defendants and to have, the proceeds' distributed among the parties entitled according to their respective interests.

The Baughers filed an answer, which later was amended, by which they admitted the tenancy but denied that they were indebted for -any rent by reason of the fact that the Birds- had failed to carry out their covenant to repair and that- thereby, through the untenantable condition of the premises-, they h'ad suffered damages largely in excess of the amount of rent to be paid for the premises, if tenantable. Exceptions were filed to this answer--, but the Court overruled them, and after hearing testimony, passed a decree disallowing the claim for rent and directing that the Birds pay to the Baughers the sum of $101.18, the amount expended by them for repairs. From that decree this appeal was taken. ²¹⁵ The first question to be determined is whether the landlords were' bound to repair; for unless a landlord so binds himself the tenant can not compel him to repair. Taylor’s Landlord and Tenant, sec. 327.

The testimony shows that under a written lease', signed by the Birds, as landlords and the Baughers as. tenants., the Baughers entered, into possession of the faina for a term beginning May 1st, 1913, and ending March 31st, 1914, at a rental of $300.00, payable $27.27 monthly in advance. The leas© contained a covenant that the landlords should do. all necessary repairs. During January and February, 1914, negotiations were commenced between the landlords., or their authorized agents, and the tenants for a leasing of the premises for another year. It was agreed that the rent was. to be raised to thirty-five dollars a month and a lease was prepared and executed by the landlords to that effect, and mailed to the tenants, who, finding upon examination that the danse as to repairs, contained in the original lease, had been omitted, and, in its. stead, one inserted, requiring the tenants to- make the repairs, returned the lease unsigned with a letter stating they would not accept tho lease with that change.

Thera was more correspondence in which the parties never came to terms aa to that point, and the tenants continued, after the term had ended, in possession and recognized by the landlords as tenants. There was no effort upon the part of the landlords to avail themselves of the provisions of law to dispossess them of the premises., but they permitted them to occupy the property and recognized them as tenants, without having had any settlement of the question of repairs. It seems so well established that it must be regarded as settled now, that where a tenant is allowed to' remain in possession after the expiration of a term, with the consent of the landlor d, the law presumes the holding to be on the terms of the original demise and subject to the same rent and to all the covenants of the original lease. Vrooman v. McKaig, 4 Md. 450 ; Hall v. Myers, 43 Md. 446 ; Hobbs v. Batory, 86 Md. 68 ; Taylor’s Landlord and Tenant, sec. 58.

The fact ²¹⁶ in this case, that the rent had been changed by agreement would not alter the rule; except as to that particular. We must hold- therefore; that the landlords were bound, under the holding over, by the covenant to repair contained in the original lease. Before the end of the original term the property was visited by a severe wind storm, by which the buildings were greatly damaged, and some of them rendered untenantable; the bam, in particular, having had the roof almost destroyed. The landlords were immediately notified, and responded that they would shortly visit the farm.

That sometime in May the agent did visit the property, and promised that the buildings would be put in shape by June, in time to store the summer crops. The tenants had a contractor1 look at the buildings and prepare an estimate as to the cost of repairs. Tie communicated this estimate to the agent, who replied a month later that he could make the repairs and take it, out of the rent. The tenants, testified that they did make some minor repairs, amounting to one hundred and one dollars and eighteen cents, but that they could not make any more, for they had not the money.

The buildings were allowed to' remain, by the landlords-, practically in the same condition the storm had left them, and the property of the tenants was damaged greatly, as the direct result of the failure of the landlords to comply with the covenant, to repair. Tn discussing the question of whether or not one could plead set off or recoup against rent, Taylor's Landlord and Tenant has the following to say at section 374: “According to