Flook v. Hunting

Bryan, J., delivered the opinion of the Court. This was a special case stated for the opinion of the Circuit Court of Baltimore City. It appears that on the ninth day of March, 1864, Henry Tiffany leased a certain lot of ground in Baltimore City to James Boyce at the annual rent of seven hundred dollars. The lease was for the term of ninety-nine years, and was renewable forever.

It contained the usual covenants; and in addition thereto the following: “And further, the said Henry Tiffany, for himself, his heirs and assigns, hereby covenants with the said James Boyce, his executors, administrators and assigns, that when and'as the above described lot of ground shall have been improved by the erection thereon of good and substantial brick or stone dwelling houses, not less than three stories high and twenty feet front, he, the said Henry Tiffany, his heirs or assigns, will, at the request and proper cost of the said James Boyce, his executors, administrators or assigns, execute and deliver to him or them a separate lease for each house so built with the lot of ground and curtilage appurtenant thereto, thereby so apportioning and dividing the entire rent hereby reserved, that each lot, into which the whole shall be so sub-divided, shall be liable and bound solely for its own rent, which shall be a fair proportion of the whole and payable semi ¹⁸⁰ annually on the days above mentioned for the payment of the whole rent.” The leasehold estate is now the property of Eben B. Hunting, subject to the covenants of the lease. Hunting has contracted in writing to sell to Luther T. Flook this leasehold estate, and in the contract of sale he has agreed that when Flook shall have erected the dwelling houses mentioned in the covenant, he can demand and procure from the owner of the original rent the separate leases above mentioned, and that the rents reserved by the separate leases will be redeemable after ten years from their respective dates for a sum of money equal to their capitalization at the rate of six per cent, per annum, under the provisions of the Act of 1888, chapter 395. Flook refused to comply with the contract on the ground that these rents would not be redeemable under this Act of Assembly. The question for the Circuit Court was whether the rents were so-redeemable; and it held that they were, and decreed that Flook should perform the contract made in reference to the said lot of ground.

He has appealed to this Court, As the original lease was made long prior-to the Act of 1888, it cannot be affected by any of its .provisions. This lease very distinctly created an irredeemable ground-rent of seven hundred dollars a year. A -redeemable rent, of course, would be of much less value. According to the lease the rent was binding on the whole lot, and it could be collected by distress from any personal property found on the premises except such as was. exempt by law.

It was payable in solido, and not in separate