Crane v. Judik

Russum, J., delivered the opinion of the Court. The bill of complaint in this case was filed in the Circuit Court for Baltimore City to enforce the specific peformance of a contract made by the appellant with the appellee to buy an original ground rent of one hundred and forty dollars per annum issuing out of a lot No. 148 Forrest street, near Gay, in said city. The bill was demurred to, and the Court below sustained the demurrer, and on appeal to this Court the cause was remanded, without either affirming or ⁶⁴ reversing the decree, under section 36 of Article 5 of the Code, to enable the complainants to amend their bill, and to prove certain facts which are necessary to a recovery and which this Court supposed to exist. Judik v. Crane, 81 Md. 610 .

It is necessary to a clear understanding of the case that we should repeat the particulars of the title. In August, 1871, Edmund Law Rogers and wife leased a quadrangular lot of ground on Forrest street to John M. Brock for ninety-nine years, renewable forever, at an annual rent of two hundred and forty dollars. Brock made a mistake, and instead of' running his second and fourth lines perpendicular to Forrest street, ran them oblique and parallel with Lowe street, which crossed Forrest street a short distance southwesterly; and he entered upon and improved the lot thus bounded. The lot thus occupied, by Brock takes in, on one side, a small triangle not embraced in the lease, and omits, .on the other side, a small triangle which was included in the lease.

Brock mortgaged the leasehold accordr ing to the lines in the lease, and afterwards, in July, eighteen hundred and seventy-two, executed a surrender of his lease to the reversioners, and received from them, on the same day, a new lease describing by metes and bounds the lot actually occupied by him. The mortgage of the leasehold was foreclosed, and the property conveyed by the description in the first lease. In May, 1894, the reversioners conveyed to David S. Collett the rent and reversion reserved in the second lease, and he conveyed them to J. Henry Judik, one of the complainants. Since the auction sale of the ground rent to the appellant, Judik and wife have released one hundred dollars of the ground rent, so that the amount now payable is one hundred and forty dollars.

In the opinion remanding the cause ( 81 Md. 618 ) this Court said : “ Brock’s surrender of his lease, and the acceptance of another in its place, could have no effect against the mortgagee, or any tenant holding under the title derived from him. Consequently the second lease and the reservation of rent contained in it would be inoperative to bind the ⁶⁵ successive assignees of the original leasehold. The Court, therefore, properly sustained the demurrer. But there are other facts very strongly implied, although not stated in the bill.

From the known and ordinary course of business we think it highly probable, in fact almost certain, that the assignees of the original leasehold who can claim title only under the mortgage sale have entered upon and taken possession of the lot enclosed and improved by Brock, and have paid the reversioners the rent reserved. If so, he has recognized them as tenants, and they have acknowledged him as landlord.” It was then said that “the title is perfectly good, if the facts are as we suppose them to be,” and the case was therefore remanded that the complainants might allege and prove them to exist. The first question therefore is, have the complainants furnished such proof of the existence of these facts as will entitle them to a decree ? We think not.

Of the witnesses who have testified in the cause, Mr. Rogers, Mr. Collett and Mr. Judik are the only persons who could state anything concerning these facts. After stating that the enclosure coincided with the description in the second lease, Mr. Rogers testified that some of the older tenants paid him rent, but he could not say whether any of the latter tenants had recognized him, or when he last collected any rent, but he thought that the Socrates Building Association was the last to pay any, and it was very remiss in its payments. It appears that during his ownership of the reversion there were two other succeeding holders of the record title, as originally described, prior to Overton; Mr. Rogers admits that sometime before the sale of the reversion to Collett the tenants had repudiated him, but he did not know “ what kind of repudiation it was.” When we