Myers v. Silljacks

Alvey, J., delivered the opinion of the Court. This suit was instituted to enforce specific execution of a covenant for renewal of a lease, for the term of ninety-nine years. xl large portion of the matter brought forward in the present case, as affording ground for relief, and which was machi the subject of elaborate argument at bar, was really involved, and in fact considered by this Court, in the determination of the action at law between the same parties, and in respect to the same property now the subject of controversy: and the principles of the decision then made, so far as the legal rights of the parties are involved, we ' ³²² shall regard as in. all respects binding and conclusive in the decision of this-case. In the case of Presstman vs. Silljacks, 52 Md., 647 , the case to which we refer, this Court held that Presstman had acquired, hy the conveyances exhibited and relied on hy him, no other or greater estate in lot No. 125, the subject of controversy, than the right to the unexpired term therein, created hy the lease from Ann Eell to Alexander McMechen, dated July 5th, 1769. It was also held, that the fee simple estate in lot No. 125 had been acquired, and was then held, by Silljacks; and that such estate was lawfully acquired hy him, notwithstanding his former relation to Presstman as tenant of such unexpired term; the purchase of the fee hy Silljacks having been made after the complete expiration of the term, and the consequent termination of Presstman’s estate.

The lease from Fell to McMechen, hearing date the 5th of July, 1769, was for the term of ninety-nine years in three adjacent lots, Nos. 123, 124 and 125, at an entire annual rent of £10. 10s. The term expired on the 4th of July, 1868. The lease contained the usual covenants found in leases made for. lots in Baltimore at the time, and such covenants appear to he in all respects similar to those contained in the lease involved in the case of Banks vs. Haskie, 45 Md., 207 . The lessee for himself, and for his assigns, covenanted that he or they would well and truly pay each year the rent reserved, to the lessor, her heirs and assigns; and that it should he lawful for the lessor, her heirs or assigns, to distrain in and upon any part of the demised premises for the rent reserved, upon non-payment thereof.

The lessor then, for herself, her heirs and assigns, convenanted with the lessee, his personal representatives and assigns, that she, her heirs or assigns, woulJ, upon the request, and at the cost and charge of the lessee, his representatives or assigns, and upon payment or tender of the sum of £10. 10s., as and ³²³ for a fine for a renewal, “at any time during the continuance of this present demise, make and execute to him the said Alexander McMeclien, his executors, &c. or assigns, so requesting and paying, or tendering as aforesaid, a lease or demise of the said demised premises, for ninety-nine years, to take effect and commence at the end ol‘ the term hereby demised, at and upon the same rent, and with and under the like covenants, provisos, and agreements, as are herein contained, so that this present demise shall and, may be renewable and renewed, forever." It is admitted that lot No. 123 was subsequently assigned by McMeclien, subject to an apportioned rent of £3. 10s.; and that afterwards this lot was surrendered to William Fell, who was then entitled to the reversion. This left the other two lots, Nos. 124 and 125, subject to an entire annual rent of £7; the entire rent of the three lots having been thus apportioned, with what would appear to have been the assent of the reversioner. In 1774, McMeclien, the original lessee, assigned one-half of lot No. 124 to Basil Lucas, subject to a rent of £3. 10s., and the other half of that lot he assigned to William Morris, subject to a like rent of £3. 10s.; and, in both of these assignments, the assignees covenanted to pay the rent thus reserved to the assignor, his representatives or assigns. Lot No. 125 the lessee assigned to William Levely, and subsequently took from Lovely a re-assignment thereof.

He then assigned the term in that lot to John and James Sterrett, and also the rents reserved out of lot No. 124; and the assignees covenanted to pay the annual rent of £7 to such person as might be entitled to receive the same, and for every renewal of the term the further sum of £7. John Sterrett having died, James Sterrett, as survivor, assigned the term in lot No. 125 to John Steele. This assignment was made in 1792; and in the instrument full recitals are made and the title deduced from the original lease of Ann Fell of the 5th of July, ³²⁴ 1169. In express terms, this assignment conveyed and transferred the unexpired term in lot No. 125, and clearly showed that it was but a leasehold estate that was the subject of the assignment.

This assignment was, as had been all the preceding assignments of the term, duly recorded as required by law. It would appear that John Steele died about the year 1809; and in 1841 a decree of the High Court of Chancery was passed for the sale of his real estate; and under that decree, the interest of the deceased in lot No. 125 was sold by a trustee. It appears to have been treated as part of the real estate of the deceased, though it was in reality but leasehold estate. It is under this sale that the present appellants claim, and the conveyances made by the trustee, for the two parcels in which lot No. 125 was sold, speak of and describe the interest or estate sold, as part of the real estate of John Steele, deceased.

But, as we have determined in the case at law, before referred to, this mistake or misconception as to the nature of the estate sold, could not operate to make that freehold estate which was in reality only leasehold estate; and that the sale and conveyance by the trustee could only operate as. an assignment of the leasehold interest of which John Steele died possessed. Turning now from the line of transmission of the leasehold estate to that of the freehold or reversion, we find that in 1192, William Fell, having died seised of the reversion in lots Nos. 124 and 125, his reversionary interest in those lots, with other real estate of the deceased, was sold by a trustee under a decree of the High Court, of Chancery; and the reversion in lot No. 125 was sold to Isaac Van Bibber, and a conveyance therefor was made to the purchaser by the trustee, on the 20th of February, 1193. The consideration for this reversionary interest in lot No. 125 is stated to have been eighty-one pounds,, current money; and special reference is made in this deed ³²⁵ to the lease from Ann Fell to McMechen. It is expressly stated that the reversion was conveyed subject to the term, which was stated to be at an annual rent of £3. 10s. and also subject to all the covenants and conditions of the original lease, with the right to receive the rent apportioned to that lot.

Thus plainly showing, that while the entire original rent reserved for the three lots had been apportioned, either by operation of law, or by the act and consent of the parties concerned, there was no intent or effective agreement on the part of the owner of the reversion, either that the lot should be released from the apportioned rent, or that it should be held by the .assignee of the term, upon any other terms and conditions than those of the original lease. In 1825, Isaac Yan Bibber died; and thereupon the reversion in lot No. 125 devolved on his son, Washington Yan Bibber, by devise; and upon the death of the latter in 1846, intestate, his real estate was partitioned, and the reversion in lot No. 125 was assigned to Nannie Yan Bibber; and she, in 1851, conveyed this reversionary estate, together with all arrearages of rent incident thereto, to William Dawson. Sometime after the expiration of the term in 1868, Dawson died; and in lSII Gleorge H. Williams, as trustee under the will of Dawson, and the widow of the testator, sold and conveyed lot No. 125 to the present defendant, Silljacks, together with all the arrearages of rent due from former tenants thereof. This is the title asserted by Silljacks in the case in 52 Md., before referred to, and which was adjudged by this Court to be good and valid as against Presstman, notwithstanding Silljacks had been and was tenant of part of the premises, at the time of the expiration of the original term in 1868, holding by assignment, under a renewable lease or demise previously made by Presstman, as if he, Presstman, had been owner of the fee simple estate in that portion of the lot. ³²⁶ Now, in view of wliat has heen decided 'by this Court in Presstman vs. Silljacks, before referred to, the sole general question, on this application, is, whether there is any sufficient equitable ground shown to justify a Court of' equity to decree a specific performance of the covenant for renewal in the original lease of 17 69? or whether that right has been lost bjr laches, and the adverse, hostile conduct and proceedings of Presstman, in denying and resisting the right and title of the party holding tlie^ estate in fee ?

On the part of the present appellants, representing the right and estate of Presstman, it is contended, 1st, that the defendant, Silljacks, is not entitled to hold anything more than a dry legal reversionary title in lot No. 125, and that the appellants are entitled, under the special circumstances of this case, to a renewal of the former lease, free of all rent therein reserved, or, at most, a nominal rent only; or, 2ndly, if that he not their right, that they are, at any rate, entitled to the renewal, subject to the annual rent of £3. 10s. and the like sum for a fine for every renewal thereof in future, upon the payment of such arrearages of rent due, by virtue of the former demise, as the appellee may he entitled to receive. Both of these propositions are controverted by the appellee, who denies that there is any equity whatever to entitle the appellants to a renewal of the lease. 1. With respect to the first proposition contended for by the appellants, we discover no, ground whatever upon which it can he maintained. It has heen argued that it had heen agreed and arranged that lot No. 124 should hear the rent of both lots No. 124 and 125, exclusively,, after the surrender of lot No. 123, and thenceforth lot No. 125 should he entirely exonerated from all liability for rent.

But for this we find no warrant in any of the transfers or assignments, of either the term or the reversion, in lot No. 125; and without such evidence, there ³²⁷ clearly would be no ground for such conclusion. It was surely not competent to the lessee or his assignees to charge the whole rent upon one lot to the entire release or exoneration of the other, without the assent of the owner of the reversion; and of any such agreement or assent there is no evidence whatever. It is true, nothing appears to have been said in the assignment by Sterrett to Steele, in regard to the rent at which the premises were to be held; but no express agreement or condition was necessary, as by the assignment of the term the assignee became bound; for the principle is well settled, that by accepting the assignment of the term, and entering into the possession of the land, the assignee subjects himself to all the covenants that run with the land, including that for the payment of rent. And, as we have seen, the sale and grant of the reversion to Van Bibber, under the decree of the Court of Chancery, by express terms, reserved to the grantee or assignee the rent apportioned to Jot No. 125.

Whether the rent thus reserved was in fact paid, or up to what time it was paid prior to the sale to Presstman, under the decree for the sale of the real estate of Steele, does not appear; but this is quite immaterial to the question under consideration. For unless the tenure created by the original lease has been changed, or the right to the rent released, the leasehold, during its continuance, remained subject to the rent reserved. In the case as presented, there is nothing to show that the tenure created by the lease of 1T69 was changed by adverse claim and possession; for the original possession having commenced rightfully, under a lease for a certain and definite term, with right of renewal, nothing is to be presumed to make a continuance of the possession, during the term, by those holding in succession under the original lessee, wrongful or adverse. Jackson vs. Davis, 5 Cow., 123 .

In such case, there must be proof of an open, notorious disclaimer of all holding under the landlord’s ³²⁸ title, and an adverse claim set up that would amount to a disseisin, in order to rebut the presumption that the possession has been in accordance with the title under which it commenced; and proof that does not show this, is not evidence of adverse possession, that will affect the landlord, in a case like the present. Gwynn vs. Jones, 2 G. & J., 184 ; Campbell vs. Shipley, 41 Md., 81 . And the fact that it does not appear that rent has been paid on lot No. 125 for a great many years, affords no sufficient ground for the presumption that a change had been made in the tenure, or that the right to receive the rent had been released or extinguished, or that it had been charged upon lot No. 124, in exoneration of lot No. 125, as contended on the part of the appellants. A release or extinguishment of the right to demand or receive rent on a lease, such as that before us, could only be by deed; and the principle is well settled, that where the relation of landlord and tenant is once established, under a sealed lease, such as we have here, the mere fact that the landlord has failed to demand the rent, will not justify the presumption that he has released or extinguished his right to it under the lease.

Jackson vs. Davis, 5 Cow., 123, 131 ; Saunders vs. Annesley, 2 Sch. & Lefr., 106; Campbell vs. Shipley, supra. There is, therefore, no grouud for the contention of the appellants, that there should be a renewal of the term free of rent, or at a nominal rent only. 2. We come now to the second or alternative proposition contended for by the appellants; and in regard to this, there are several matters to be considered, which have been strongly pressed on the part of