Nickel v. Brown

Bryan, J., delivered the opinion of the Court. It appears from'the evidence in the cause that Stewart Brown, as trustee, is seized of the reversion in fee in three certain lots of ground lying in the City of Baltimore and that this reversion- is expectant on a leasehold estate for ninety-nine years. The lease is not set out in the transcript sent to this Court, nor any extract from it. We, however, gather from statements in the hills of exception that a rent was reserved on each lot of sixty dollars per annum, payable half yearly on the first day of January and on the first day of July in each and every year, and that the lessee covenanted for him ¹⁸⁴ self, his personal representatives and assigns to pay the rents when they should become due, and all taxes and assessments on the property.

It is also stated that Christian Gr. Nickel by assignment duly recorded in 1886, became jmssessed of the leasehold and that he paid the several rents up to January, eighteen hundred and eighty-nine, and that no rent has been paid since that time. Christian Nickel died before the institution of this suit, and his widow Eredericka C. Nickel was duly qualified as his executrix. In July, 1889, this leasehold interest was duly sold by the executrix under an order of the Orphans’ Court of Baltimore City to Mrs. Scott.

Deeds were executed for the leaseholds in the several lots mentioned in September, 1889, and delivered before the first of January, 1890, but they were not recorded until June, 1890. There was evidence that Mrs. Scott took possession of the property on the day of the sale to '•her, and circumstances were proved sufficient to leave to the jury the question of whether the trustee had notice of the existence of the deeds before the institution of this suit. The suit was brought in February 1890, after the delivery of the deeds to Mrs. Scott, but before they were recorded, and the leading question is, whether the executrix is liable for the rents and taxes that were in arrear when the suit was brought. By the terms of the lease it was "required that the rents should be paid semi-annually at stated periods throughout the entire term of the tenancy.

When these periods arrived, the person who occupied the position of tenant was bound by covenant to pay them. Nothing can be more clear than that there was to be no intermission in the payments; there was always to be a tenant who was bound to pay and this tenant was. either to be the original lessee, or an assignee of the term. The assignee became bound bjr the covenant to pay the rent as soon as his legal title by assignment was per ¹⁸⁵ fected; the obligation of this covenant ceased as soon as his title as assignee came to an end, but it continued until that time. In a suit brought against him after his title by assignment had terminated, no recovery could he had at law for rents which had accrued during the assignment; although it was otherwise in equity.

Hintze vs. Thomas, 7 Md., 346 . But his assignment continued in full force and effect until he put some one in his place possessed of the leasehold by legal title. In Mayhew vs. Hardesty, 8 Md., 479 , it was decided that an assignee was liable on the covenants of the lease, although he had sold his entire interest to a third person and executed a bond of conveyance for the propertjr and the lessor had repeatedly accepted rent from the purchaser. It was held necessary that the legal title should pass to the purchaser before the assignee’s liability ceased and that the legal title could not pass except by deed executed and recorded.

In Lester vs. Hardesty, 29 Md., 50, it was said that the legal obligations upon the covenants in a lease “run with the land, and bind the party holding the legal estate. ” And it was held that where the assignee had sold his interest in the leasehold and executed and delivered a deed to the purchaser, that the purchaser was under no legal obligation to record the deed and that until recorded, the vendor continued to hold his position as assignee and was liable on the covenants of the lease. There can he no hiatus in the tenancy; there can he no abeyance of the legal title to the leasehold. The requirement of the lease is that throughout the whole period of its existence there shall be some one to fulfil the obligations of the tenancy. The mode by which the legal title must be conveyed is distinctly provided in the twenty-first Article of the Code of Public General Laws.

The first section is as follows: Ho estate of inheritance or freehold, or any declaration or limitation of use, or any estate ¹⁸⁶ above seven years, shall pass o.r take effect unless the deed conveying the same shall be executed, acknowledged and recorded as herein provided.” It will be seen that leaseholds for more than seven years are to be conveyed in the same manner as