Popplein v. Foley

Miller, J., delivered the opinion of the Court. The records in these cases show that Popplein and Eschbach entered into two written contracts, dated 10th of March, 1816, by which they agreed to lease two adjoining vacant lots of ground fronting on Eutaw Place, in the City of Baltimore, one from Marcella Mactavish, trustee of O. O. Mactavish, and the other from Daniel J. Foley, trustee of Emily Mactavish. The two agreements are in precisely the same terms; and but one of them need be stated. It is as follows: ³⁸³ “ Baltimore, March 10, 1876. “ We hereby agree to lease of Daniel J. Foley, trustee-of Emily Mactavish, deceased, a lot of ground fronting seventy-six feet eight inches on the northeast side of Eutaw Placo, by a depth of one hundred and thirty feet more or less to Jordan alley, said lot being situate between McMechen and Mosher streets, and we agree therefor to-pay the annual rent of twelve dollars per front foot for-said lot, payable half-yearly, and to he computed from the 1st day of June, 1876.

We to have the privilege of redeeming said rent at any time within the period of four years from that date, June 1st, 1876, at six per cent, upon giving the said trustee sixty days’ notice of such intention to buy out, in writing. Taxes to be adjusted to 10th of March, 1876. “Kick’s Popplein, “John Eschbach. “Witness: — Frank H. Yearley. “ I approve of the above lease. “ D. J. Foley, Trustee.” On the 10th of July, 1880, two hills were filed for specific execution of these agreements, one by Mrs. Mactavish and the other by Foley, each containing substantially the same averments. They charge that in March, 1876, the defendants, Popplein and Eschbach, applied to Mr. Yearley, a real estate broker, and the agent of the complainants, to lease the lots in question for ninety-nine years renewable forever; that after the terms had been agreed upon they requested Yearley to prepare agreements for such leases, and he accordingly prepared these contracts, which they signed, and which were intended by and between them as agreements for leases for ninety-nine years renewable forever, and none other. The hills then set out delivery of possession and various acts of part performance, continuing for several years, and explain ³⁸⁴ how the immediate execution of the leases was postponed •at the instance and for the accommodation of the defendants.

They then charge that since the year 1878 the defendants, though frequently requested, have persistently refused to accept or join in the execution of such leases, and have finally assumed the position that under these agreements they bound themselves to become tenants from year to year only. This construction of the contracts the •complainants repudiate, and aver that the same are operative and valid, and, in accordance with the usage in the City of Baltimore in such cases, are necessarily to be construed as agreements to lease for ninety-nine years renewable forever, although the length of the terms is not specifically set forth. They further charge that while they are advised and insist that these contracts are operative as agreements for such leases, notwithstanding the mistake and oversight by which the length of the term was omitted to be set forth in words, they nevertheless insist, and will claim, that this omission was altogether an •oversight and mistake such as Courts of equity will relieve against, and that they are entitled to have the same reformed by the insertion and designation of the term of ninety-nine years renewable forever, as the term of the demises agreed upon. They then pray that these contracts may be specifically enforced as agreements for such leases to the same effect as if so written in words, and that they may be reformed so as to read as if they had been so written, should the Court deem such reformation needful to the relief of the complainants, and for general relief.

The defendants in their answers admit the execution, but insist that by the true construction of these agreements, they only rented the property from year to year. 'They deny that when they signed them they were intended ns contracts for leases for ninety-nine years renewable forever, or that possession was delivered to, or was ac ³⁸⁵ cepted by them as tenants for such terms. They also deny that the other acts of part performance alleged in the bills have reference to the contracts as construed by the complainants, or that the draughtsman made any mistake which a Court of equity can correct or reform. They further deny that any usage can be injected and incorporated with these agreements so as to fix the term for the leases, and again insist they can only be construed as creating tenancies from year to year. After general replication to these answers the testimony of a number of witnesses on the part of the complainants was taken, but no testimony was offered by the defendants.

The cases were heard together and the Circuit Court passed a decree enforcing the contract in each case as an agreement for a lease for ninety-nine years renewable forever, and from these decrees the present appeals have been taken by the defendants. While specific execution is a matter not of absolute right in the party but of sound discretion in the Court, yet if a contract respecting real property is in writing, and is certain, fair in all its parts, for an adequate consideration, and capable of being performed, it is as much a matter of course for a Court of equity to decree specific performance of it, as it is for a Court of law to give damages for a breach of it. Smoot, et al. vs. Rea & Andrews, 19 Md., 398 . The only difficulty in these cases is that in the agreements the length of the term for which the leases were to be made is not distinctly expressed in words.

Were it not for the decision of our predecessors in Myers vs. Forbes, 24 Md., 598 , we should be strongly inclined to hold that the Court would be justified in construing them as providing for and contemplating nothing more nor less than leases for ninety-nine years renewable forever. The subjects of the contracts are vacant lots, and these are located in a city where this peculiar form of lease is not only in constant and daily use, but has been ³⁸⁶ from its foundation the well-known, familiar, favorite and' prevailing system of real estate tenure.