Lewis v. Kinnaird

Briscoe, J., delivered the opinion of the Court. There are six exceptions to the sale made by the appellee, trustee, in this case, filed on behalf of the appellant, the purchaser of the property, and they will be considered in their regular order. The exceptions were overruled by the Circuit Court No. 2, of Baltimore City, and the sale was finally ratified and confirmed on the 29th day of May, 1906. And from the order so passed an appeal has been taken.

There is no dispute as to the facts—they are presented in the record on an agreed statement of facts signed by the attorneys for the respective parties. The sale was under a decree of Court for the sale of mortgaged premises. The trustee sold under the decree three contiguous leasehold lots, each improved by a two story brick dwelling situate on Lexington- street in Baltimore City. The second lot, 1020 West Lexington street, was purchased by the appellant, Cloyd Lewis, and he excepts to the ratification of the sale of the property made to him.

The sale of the other two lots is not contested. The property involved in dispute is the second lot, No. 1020, and is described as adjoining lot No. 1 on the west, with a front on Lexington street of 12 feet 6 inches and a ⁶⁵⁵ depth of 85 feet more or less, and subject to an annual ground rent of $37.50. It is objected on the part of the appellant that the property was advertised and sold as leasehold property subject to an annual rent of $37.50, whereas it is sub-leasehold property, subject to a greater and different rent. It is admitted in the agreed statement of facts that on November 12th, 1828, a lot 49 feet and 6 inches, including this one, was assigned by William Gwynn to Samuel Wood, subject to a ground rent of two pepper corns, if demanded.

The title to the leasehold by mesne conveyance became vested in one Elizabeth Cole, who on October 24th, 1840, sub-leased the lot to Samuel Wood for the yearly ground rent of $48. Subsequently the title became vested in one Peter Kreis, who on September 1st, 1886, sub-leased a portion of the lot, including the lot here in dispute, to John B. Sommers, for the yearly rent of thirty-seven dollars and fifty cents. And in the sub- lease there is a covenant of protection as to any greater rent. It further appears that one Louisa C. Overman owned both of the ground rents, herein mentioned, and the sub-lease was assigned to one John J. Kane, who mortgaged it to the appellee’s testator, and under this mortgage, the lot was sold.

The principal objection urged by the appellee is that the property was sold as leasehold, subject to a ground rent of $37.50, whereas, as a matter of fact, it is subject to two additional ground rents, towit, a ground rent of two pepper corns, if demanded, under a lease dated the 12th of November 1828, and a further rent of $48 per annum under a sub-lease dated the 24th of October, 1840. As to the objection to the title, because of “the ground rent of two pepper corns if demanded” we will say: The rent was created more than seventy-five years ago, and there is not a particle of evidence in the record to show that it has ever been demanded, If, however, the rent was of a substantial value, it would be barred by sec. 26, Art. 53 of the Code, which provides that whenever there has been no demand or payment ⁶⁵⁶ for more 'than twenty consecutive years of any specific rent reserved out of a particular lot, under any form of lease, such rent shall be conclusively presumed to have been extinguished, and the landlord shall not thereafter set up any claim thereto, or to the-reversion in the lot out of which it issued or have the right to institute any suit, action or proceeding whatsoever to recover the rent. In Speed v. Smith, 4 Md. Chan. 299, the Chancellor said, in a case where the rent was of some value: “But seeing that the lease * * is upwards of fifty-six years old and that no proof has been produced to show that this particular parcel of property is now held liable for the rent of $20 reserved by that lease, I cannot think it would be proper to conclude that it is so liable. The burden of proof is upon the exceptant, and I am by no means prepared to say, he has made his case out simply by the adduction of a lease executed more than half a century ago, without any proof whatever that the rent reserved by the lease has been exacted from the owner of this particular parcel. ” The second objection to the title, on account of the rent of $48, reserved by the lease from Cole to Wood, dated October 24th, 1840, is also without merit.

This rent it appears was merged and extinguished upon the execution of a deed dated June 22nd, 1893, from one Schermerhorn to Louisa C. Overman, the then owner of the ground, rent of $37.50 reserved upon the lot. And it is admitted by the agreed statement of facts that it