Kaminski v. Wladerek

Digges, J., delivered the opinion of the Court. On June 19th, 1920, Antoni Kaminski and Tekla Kaminski were the owners in fee simple, as tenants by the entirety, oí a lot and improvements1 thereon in the City of Baltimore, known as Ko. 2044 Gough Street, the same having been acquired by deed from Jozef Sobus and wife: and being so seised, Antoni Kaminski, in contemplation of his' absence from the state, executed a power of attorney to his wife, Tekla Kaminski, in the following form: ' “Know- All .Men By These Presents, That 1, Antoni Kaminski, at present of Baltimore City and State of Maryland, intending hereby to leave the Stale of Maryland, do hereby constitute, nominate and appoint my wife, Tekla Kaminski, of Baltimore City and State of Maryland, to be my true, sufficient and lawful attorney, for me and in my name, place and stead, to grant, ⁵⁵⁰ convey or assign unto any purchaser or purchasers, their heirs or personal representatives and assigns, or to any body corporate, its successors and assigns, all those two lots of ground, known as No. 2313 Meet Street, said property being on the south side of Fleet Street distant one hundred and twenty-five feet and nine inches east from Patterson Park Avenue, with a front of twelve feet and five inches on south side Canton Avenue and an even depth of sixty feet southerly of sixty feet, said property being subject to annual ground rent of $16.25. Being the same lot of ground which by deed dated May 3rd, 1920, and recorded among the Land Records of Baltimore City in Liber S. C. L. No. 3576, folio 15, from Ignacy Popiolek and wife to myself. And the lot being known as No. 2044 Gough Street, said property being on the north side of Gough Street distant one hundred and sixty feet eight inches east of Castle Street, with a front of fourteen feet four inches on the north side of Gough Street and an even rectangular depth of seventy-eight feet to an alley three feet wide, said lot being in fee simple.

Being the same lot of ground which I have acquired from Jozef Sobus and wife. I also authorize and empower my wife, the said Tekla Kaminski, to collect all the rents or “other sum of money which may be or become due to me and to give receipts therefor in my name and to pay all taxes or assessments, levied or assessed upon my property real or leasehold, and generally to do all other lawful acts and things whatsoever concerning the premises as fully and in every respect as I might or could do were I personally present at the doing thereof. Witness my hand and seal this 19th day of June, 1920. “Antoni Kaminski. (Seal) “Test: Genevieve D. Jarzy.” “State of Maryland, “City of Baltimore, to wit: “I hereby certify, That on this 19th day of June in the year one thousand nine hundred and twenty before me, the subscriber, a Notary Public of the State ⁵⁵¹ of Maryland, in and for Baltimore City aforesaid, personally appeeared Antoni Kaminski and he acknowledged the aforegoing power of attorney to he his apt and deed.

As witness my hand and notarial seal. “Genevieve D. Jarzy, (Seal) “Notary Public.” This power of attorney was recorded on August 30th, 1921, in Liber S. C. L. 377-1, folio 51, of the Land Records of Baltimore City. A day or two subsequent to the execution of this power of attorney, Antoni Kaminski went to Poland and remained until some time in the latter part of August or the first of September, 1923. During the absence of the husband, on the 24th day of June, 1922, Tekla Kaminski executed the following written agreement under sea.1 with John A. Wladerek, the appellee: “This agreement made this 24th day of June in the year nineteen hundred and twenty-two, between Tekla Kaminski of the City of Baltimore in the State of Maryland, hereinafter designated as Landlord, and John A. Wladerek of the City and State, hereinafter referred to as Tenant. “Witness, that the said Landlord does hereby rent to the said Tenant, this room and cellar of the premises number 2044 Gough Street and all the fixtures and chattels contained therein consisting of one icebox; meat slicer; combination coffee and meat grinder; computing scale; counter scale; one Walker bin counter; one side of shelving with Walker bins; one side of plain shelving; saws and knife; two meat blocks and meat counter, for the term of one year beginning on the 24th day of June in the year nineteen hundred and twenty-two and ending on the 24lh day of June in the year nineteen hundred and twenty-three, at and for the sum of'five hundred and forty dollars for said term, payable in equal monthly installments of forty-five dollars in advance on the 24th day of each and every month in said Agreement. “And the said Tenant hereby covenants that he will keep the premises in good order, and surrender the ⁵⁵² peaceful and quiet possession of the same at the end of said term, in as good condition as when received (the natural wear and decay of the property or unavoidable accidents excepted), and further, that the said Tenant will not do, suffer or permit anything to be done, in or about the premises, which will contravene the policy of insurance' against loss by fire; and further, that whatever alterations or repairs the said Tenant shall be permitted to make shall be done at his own expense. “It is further agreed that if the rent shall be ten days in arrear, the Landlord shall have the right to distrain for the same, and to re-enter and take possession; and if the Tenant shall violate any of the covenants on his part herein made, the Landlord shall.have the right, without formal notice, to re-enter and take possession; and if the property shall be destroyed or rendered untenantable by fire the tenancy hereby created shall thereby terminate, and all liability for rent hereunder shall cease 'upon payment proportionately to the date of fire or other unavoidable accident. “It is further agreed that the Tenant has the right and option to extend this Agreement for the period of another year after the termination of the term mentioned for the same rental and subject to all the covenants and agreements contained herein; and further the said Tenant has the right and option at any time dring the Agreement or the renewal of same to purchase the entire property number 2044 Gough Street in fee simple at and for the sum of Sixty-two hundred dollars ($6,200.00). “The above Agreement has been read by both of us as witness our hands and seals the day first above written. ■ “Tekla Kaminski (Seal) “John A. Wladerek . (Seal) “Test: Philip Wladerek. “Recorded August 23, 1922, in S. C. L. 3898, folio 602.” This agreement provided for the renting of a.portion of the Gough Street premises and all the fixtures and chattels ⁵⁵³ contained therein to the appellee for the term of one year beginning the 21-tli clay of June, 1922, for the sum of $540, payable in monthly installments of $45 in advance on the 24th day of oa'ch month.

It was further agreed therein that the appellee had the right and option to extend the agreement for the period of another year after the termination of the term mentioned, for the same rental and subject to all covenants and agreements contained in the instrument; that at any time during the agreement or- the renewal of the same, the appellee was given the option to purchase the entire property, 2044 Gough Street, in fee simple at and for the sum of $0,200. The appellee, immediately upon the execution of the agreement, entered into possession of the property rented to him as tenant and made improvements upon the property to the extent of about $400. He promptly paid the rent as it became due, and in A!ay, 1923, about one month before the expiration of the first year, he saw Mrs. Kaminski and told her he was thinking of closing the deal as per the agreement, hut was persuaded by her not to exorcise the option of purchase at that time, as the rental meant a great deal to her; and it was suggested by her that he stay another year, paying the rent, and he could exercise the option to purchase before the second year expired. This was done.

On November 6th, 1923, after the return of Antoni Kaminski, the attorney of the appellee wrote to the appellants stating that he had completed the search of the title, of the property purchased from them by M r. Wladerek, and asked them to be at his. office on Thursday at one o’clock to sign the deed. They did not appear, but the appellee’s attorney received a letter from the attorney for the appellants, dated November 9th, 1923, in which it was stated: “l am authorized by Antoni Kaminski and Tekla, Kaminski to say that they do not wish to sell the property mentioned in your letter to them, i. e., 2044 Gough Street.” On November 23rd of the same year the appellee, through his attorney, noli lied each of the appellants that he was. desirous to consummate the purchase from them of the house in question, and with ⁵⁵⁴ that end in view, would be at their house, 2044 Gough Street, on the Friday following at 6 p’. m., for the purpose of having them execute the deed and pay the money. Nothing' having been done, on June 3rd, 1924, the appel'lee by letter informed tlie attorney for the appellants that he was desirous without further delay to consummate the purchase of the property in accordance with the agreement, and with, this object in view advised them that on June I'/’th, 1924, at 4 13. m., he would be ready to pay in full for said property.

On June 13th, 1924, he wrote a similar letter to both of the appellants. No response having been received, the appellee on June 23rd, 1924, one day before the expiration of the second year of the term, Med in Circuit Court No. 2 of Baltimore City a bill for specific performance of the agreement. The bill alleged the making of tlie lease with the option to purchase as set forth in the agreement; 'that before the execution of same it was presented to tlie attorney of Tekla Kaminski, who approved it and advised the appellee that she had a power of attorney from her husband, who was then in Russia and would not return to America, and that Tekla Kaminski could do as she pleased with the property; that relying upon said statement the appellee executed the lease and entered into possession of the proyerty; that the appellee engaged in the retail grocery business, and in order to fit the premises for such business he spent several hundred dollars in repairs and alterations, which lie would not have done had he not intended to exercise the option to purchase the property; that having built up a; substantial business by tlie fall of 1923, in November of that year he notified the appellant Tekla Kaminski of his decision to exercise the option; that from that time on. he continued to notify the appellants or their attorneys of his desire to exercise the. option, and his readiness and ability to pa.y for tlie property, but the defendants have refused to convey said property to him; that Antoni Kaminski and Tekla Kaminski, his wife, are the owners of the property; that after her husband ⁵⁵⁵ left this country, Telda. Kaminski, under and by virtue of the power of attorney from him, conveyed the premises at 2044 Gough Street in fee to one of her attorneys, and on the same day it was re-conveyed to her in fee simple; that from the time the appellee entered into possession of the premises on June 24th, 1922, until Antoni Kaminski returned to his home in August or September, 1923, lie regularly paid the rent to the appellant, Telda; Kaminski, believing that she was the sole owner of the said property, as advised hv her attorneys, and since the return to this country of the appellant Antoni Kaminski the appellee has regularly paid said rent to the appellants, who have accepted same and receipted to him for it, up until the time of the filing of tbe original bill of complaint in June, 1924; and further, that the said defendant© and “each of them have 'accepted said rent reserved in the lease with the option to purchase said property in accordance with the terms thereof.

The prayers of the bill are, that the agreement may be specifically enforced and the appellants be decreed to convey to the appellee the aforesaid premises in accordance therewith, upon the payment of the purchase money still due and owing by tbe appellee! Tbe appellants answered the bill of complaint, in which answer the husband denied any knowledge of the making of the lease, and both defendants denied all of the other material allegations of the bill. After testimony was taken in open court, and argument, the lower court decreed that the appellee was entitled to a conveyance of the property in fee simple, upon the payment of the purchase price agreed to in the lease, and appointing a trustee to make said conveyance. Erom this