Feldmeyer v. Werntz

Stockbridge, J., delivered the opinion of the Court. In April, 1910, Robert L. Werntz instituted a suit in ejectment against Charles G-. Eeldmeyer in the Circuit Court for Anne Arundel County, to recover possession of the premises in the City of Annapolis, known as Ho. 48 Maryland avenue. The size of the lot was said to be 20 by 90 feet, adjoining the Annapolis Opera House, formerly known as The Masonic Hall, and the declaration sought a recovery of the land and $1,200 damages. ²⁸⁷ To this declaration the defendant, appellant here, filed— first, a plea of non cul.

The case was then removed to Baltimore City for trial, and after its removal there, additional pleas were filed, the second being a plea upon equitable grounds; the third, that the defendant was holding the property under the provisions of a lease thereof set out in the equitable plea; and fourth, that the'defendant so holding the property had performed all stipulations and covenants contained in the lease to be by him performed; and the fifth plea set up, that the matter in controversy was res adjudicaba. The plaintiff demurred to the second and third pleas, and filed a motion of ne recipiatur as to the plea of res adjudicata, and the demurrer and motion were subsequently sustained. The action of the lower Court in this regard presents the first matter for consideration. An appeal from the final judgment in a civil action brings up for review the action of the trial Court in its rulings on demurrers to pleas and replications, and no bill of exceptions or writ of error designating the point of law is necessary.

Kendrick & Roberts v. Warren Brothers, 110 Md. 76 . The sufficiency or insufficiency of equitable pleas has been frequently before this Court, and the authorities were very fully collected in Bond v. Murray, 84 Atl. Rep. 655 , where it was stated that a defense which is a good defense at law, can not be pleaded on equitable grounds, because it is only such a defense as could not formerly have been pleaded at law, that is now let in on equitable grounds. The equitable plea in this case set up the following matters: that on the B16th January, 1875, the property which is the subject-matter of the suit, was in the possession of the Trustees of the Annapolis lodge Mo. 89, Ancient Free and Accepted Masons of Anne Arundel County, who on that date leased the land to Charles BE.

Hopkins and Spedden Y. Wilson for a term of twenty years from that date. The lease is set out in full, and that paper recites that in contemplation of the lease, ²⁸⁸ .Hopkins and Wilson had' erected, at their own expense, a two-story frame building on the lot 20 by 90, south of and adjoining the Masonic Hall; that the Trustees, the party of the first part to the lease, were to have the full use of the second story of the building to be used by them in conjunction with a large room in the Masonic Hall, which is used for giving theatrical and other public entertainments, ánd for such other reasonable purposes to which the parties of the first part should see fit to apply them; that the parties of the second part were to pay all taxes and assessments levied and to be levied upon 'the lot so leased and the dwelling or dwellings erected thereon, and then follows this provision: “Third. That they will further during the continuance of said lease keep the second story of said building in good and proper repair; that they will permit such portion of said lot as is not covered by said building to be used in common with them as a yard for the said Masonic Hall, and that they will not permit intoxicating liquors to be sold in said building during the continuance of said lease. And the said parties of the first part, for themselves, their heirs and assigns, covenant and agree that during the continuance of said lease, that they will pay the ground rent which shall accrue from time to time upon said lot.

And it is herein further provided that at the termination of this lease, the said parties of the first part shall either lease said lot to the party of the second part or their assigns for another period of twenty years, subject to all the terms and conditions of this lease, or shall have the right to purchase of the said party of the second part, their heirs and assigns, the building aforesaid, as follows: If the parties are not able to agree upon the value of said building, then each of them shall appoint one appraiser to assess and value said property, and should said appraisers be unable to agree, then they the appraisers shall have the power to call in a third party as umpire, and the decisions of said appraisers shall be conclusive among the parties.” ²⁸⁹ The plea then goes on to recite that on the 21st of January, 1875, Spedden V. Wilson assigned all his interest under the lease to James W. Holland, and a full copy of that assignment is given; that on June 13th, 1882, James W. Holland assigned to Charles G. Eel dmeyer all his interest in the lot so acquired from Wilson, and a copy of that assignment is inserted in full; that on January 23rd, 1890, Charles H. Hopkins assigned all of his interest under the lease to Charles G. Eel dmeyer, and that assignment is also fully set out. The plea further recites that when the original term of twenty years expired, the lessors and their successors did not exercise the option to purchase, already mentioned in the original léase, made no offer to appoint appraisers for a valuation of the property, and gave no legal and sufficient notice to vacate; that,the improvements erected by the defendants cost in the neighborhood of $3,000, and concludes, that to permit the plaintiff to' recover in the action would allow him to escape the payment of the cost of improvements in accordance with the stipulations of the lease. The facts set up by this equitable plea have thus been somewhat fully recited for the reason that this plea is almost identical with a plea filed on equitable grounds in the case of Carpenter v. Wilson, 100 Md. 13 , in which this Court, after giving the substance of the equitable plea, said, that upon the facts recited, if properly proven, there could be no doubt that a Court of Equity would afford relief by enjoining any judgment of restitution which might be made in a Court of Law. The only important difference beteween the lease in the present case and that under consideration in Carpenter v. Wilson, supra, is that in the present lease there is no rent stipulated to be paid, but the lease does distinctly give to the lessors the full and complete right of user of the second story of the building erected on the lot in question, and this was apparently deemed by the parties, together with the covenant on the part of the lessee to pay the taxes, an equivalent for any -rent.

The plea on equitable grounds in ²⁹⁰ this case may be open to the criticism of being unduly prolix in setting out in full the original lease and assignments thereof, and undoubtedly the defendant could have framed an equitable plea relying upon the same facts without so giving these several papers in extenso, reserving the full text as matter of proof at the trial; but the mere fact that by thus fully setting out the several papers upon which the defendant relied the plea was made cumbersome, can not be regarded as making it legally bad, and when the trial Court sustained the demurrer to this plea, it committed error. The demurrer to the third plea was also sustained, and properly so. That plea was as follows: “And for a third plea, the said defendant says: that he is holding and in possession of said property in the declaration mentioned under the provisions of the original lease set- out in the equitable plea and that said lease is still in force and effect.” This plea involved a conclusion of law, rather than embodying a statement of fact, and as to the nature of the then holding of the premises by the defendant, the question was one to be raised by appropriately framed prayers, not by alleging legal conclusions by way of plea. Code 1904, Art. 75, sect. 2, 1 Poe on Pleading and Practice, sect. 549; Aetna Indemnity Co. v. Fuller, 111 Md. 321 .

The fifth plea, as already said, was a plea of res adjudicaba, yet for some reason which does not appear in the record, the Court declined to receive such plea by the granting of the motion ne recvpiatur. If, as matter of fact, there had been prior litigation between the same parties involving the same subject-matter, carried to a point of final determination upon the merits, there was no reason why the defendant should not be permitted to show that fact. Whether it is necessary to specially plead it, or whether evidence of such prior adjudication can be given under a general issue plea, may be open to considerable question, but Mr. Poe, in his -valuable work on PleaÁi/ng, sects. 655 and 656, lays it down as better practice to plead a defense of- this character spe ²⁹¹ dally. If the defendant failed to establish the matter thus pleaded by proof, it could not avail him; while, on the other hand, if he could so establish it, he was entitled to have the pleadings so framed as to permit him to offer the evidence.

It was therefore error on the part of the trial Court to grant the motion of ne recipiatwr. The first- bill of exceptions in this case relates to evidence. The plaintiff, Robert L. Wemtz, was under examination, and he was asked as to the rental value of the property in question; to which objection was made, but the objection was overruled and the witness permitted to answer. The declaration in this case was for the restitution of the premises, and for $1,200 damages; the lease upon which the defendant relied named no rental whatever; if the plaintiff, upon a proper construction of the terms of the agreement, was entitled to the restitution of the premises, he was likewise entitled to recover damages, and one element of those damages Avould consist in the rentals of the property of which he had been deprived.

It was, therefore, proper upon his theory of the case, that he should be thus permitted to testify as to the rentals value as bearing upon the question of damages. The second exception was to the ruling of the Court, excluding from consideration the record of a prior litigation between the same parties, in regard to the same subject-matter and which had been terminated by a verdict for the defendant. This was a natural consequence from the granting of the motion of ne recipiatur as to the defendant’s fifth plea. In order to determine fully whether the exclusion of this record was or was not correct, it becomes necessary to examine the proceedings in the two cases with some degree of particularity.

The present plaintiff acquired his title to the property in the month of March, 1907, and on the 26 th of that month, in a letter addressed to