Rocks v. Brosius

Barnes, J., delivered the opinion of the Court. This appeal arises from a final decree passed on February 11, 1965 by Judge Bowie in the Circuit Court for Prince George’s County granting specific performance, of, as well as declaratory and other relief in connection with, an agreement to lease, dated August 4, 1962 involving a tract of land containing 94.5036 acres lying to the north and south of Contee Road in Prince George’s County, known as “Briarwood.” Also involved is an order passed by Judge Bowie on January 11, 1965 holding the appellants in contempt of an interlocutory injunction dated and filed in this case on May 14, 1964. “Briarwood,” the 94.5036 acre tract involved in this case was owned in fee simple by John W. Staggers and Ruth F. Staggers his wife (Staggers), on February 5, 1962. On that day ⁶¹⁸ the Staggers executed a lease of “Briarwood” to Prince-Mar Builders, Inc. (Prince-Mar), a Maryland corporation of which Ralph D. Rocks, one of the appellants, was president. By this lease, Prince-Mar held the leasehold interest in the land for 35 years “renewable from term to term, as hereinafter set forth, in perpetuity, from the 1st day of March, 1962 * * *.” The rent received was $17,010.65 a year payable in even and equal monthly installments accounting from March 1, 1962 over all discounts for taxes, assessments of every kind, and other public charges levied or assessed against the demised premises, all ,of which charges Prince-Mar, as lessee, covenanted to pay.

There was a provision that if the rent was in arrears at any time and the default continued.following 10 days written notice, the lessors could make distress for the rent, if in default for 60 days following written notice, the lessors could reenter and hold the demised premises and if in default for 6 months following 60 days written notice of the arrearage of rent, the lessors could reenter and hold the demised premises as if the lease had not been made. There was a specific covenant that the lessee, its successors or assigns would “pay the aforesaid rent, taxes and assessments when legally demandable (emphasis supplied). The lease also provided that during the original 35 year period, the lessee could by paying a renewal fine of $1.00 request a new lease for another 35 year term for the annual rental of $17,010.65 “adjusted upwards in the same proportions as the ‘Consumer’s Price Index for all Items for Moderate Income Families in Large Cities’, as determined by the United States Department of Labor, Bureau of Labor Statistics, (or, if there be no such Consumer Price Index, then by the successor or the most nearly comparable successor index thereto), for the month of December next preceding the date on which the Lessee desires to renew said term has increased from such Consumer Price Index for December, 1961 and upon the same covenants and conditions as herein set forth, so that the demise hereby created may be renewable and renewed from time to time, forever.” There was a covenant that if during the original 35 year term, the lessee would pay the sum of $3900 an acre with all accrued rent to the lessors, then the demised property would be discharged from the payment of rent and the lessors ⁶¹⁹ would convey the demised property to the lessee, its successors and assigns by a special warranty deed for a good and merchantable title in fee simple. After the expiration of the original 35 year period, there was a similar right of redemption for $3900 an acre adjusted upwards by the Consumer’s Price Index formula already mentioned.

The lease further provided that the lessors, their heirs and assigns, would subordinate their interest to bona fide mortgages or deeds of trust obtained from recognized lending institutions “for the pitrpose of financing constructive and permanent financing, or refinancing of improvements erected or to be erected on the demised premises” by the lessee its successors and assigns and that the failure of the lessee, its successors or assigns, to make payments under such mortgages or deeds of trust “shall constitute a default under the terms of this lease” and the lessees, their heirs and assigns, at their option might (a) terminate the lease and repossess the property or (b) make the payments and charge them with interest at 6% per annum as additional rent immediately due and payable without notice. By paragraph 10 of the lease, the lessors, for themselves, their heirs and assigns, covenanted with the lessee, its successors or assigns, “that at the request of the Lessee its successors or assigns, they shall join with it in executing, acknowledging and delivering any and all documents required to effect any subdivision of the subject property, or any part thereof, into smaller parcels, including the dedication of the public streets and rights of way and easements for public utilities required by such subdivision, * * In paragraph 11 of the lease there was a covenant that the lessors, their heirs and assigns, upon any subdivision into smaller parcels as the lessee, its successors or assigns, may desire, would enter into separate leases, completely independent of the leases on the remaining properties, containing the same covenants and pro rated rent. Paragraph 11 then continued: “The Lessors, their heirs or assigns, shall join in such lease instruments as may be prepared by the attorneys for the Lessee, its successors or assigns, to effect a separate leasing of the smaller parcel or parcels * * The recording charges for the cost of preparing the new leases were to be borne by the lessee. ⁶²⁰ Attached as an exhibit was a metes and bounds description of Briarwood. The description is divided into three parts, 1) Parcel A containing 35.0261 acres, 2) Parcels B and C containing 34.2981 acres, and 3) Parcel D containing 25.1794 acres.

The total acreage described is 94.5036 acres. This lease was duly recorded among the land records of Prince George’s County. Prince-Mar on March 23, 1962 entered into a written, but unrecorded, agreement to lease Briarwood to J. William Brosius or assigns. Mr. Brosius, a builder of homes, gave his promissory note dated April 10, 1962 for $5000.00 payable to Prince-Mar or assigns within 60 days from date as a payment on account of the agreement to lease.

Prince-Mar, on April 25, 1962, by a deed duly recorded, conveyed its leasehold interest in “Briarwood” to the appellants Ralph D. Rocks and Jean W. Rocks, his wife (the Rocks or the appellants), as tenants by the entireties for the residue of the term of years yet to come, with the rights of renewal forever, subject to the payment of the annual rent received of $17,010.65 payable monthly in accordance with the lease of February 5, 1962. On May 9, 1962, A. James O’Mara, a registered engineer, of the engineering firm of Greenhorne & O’Mara, Riverdale, Maryland, prepared a plan of Section One of Briarwood. His certificate indicates the source of title of Mr. and Mrs. Staggers and that the total area in Section One (I) 1 consists of 20.3945 acres. This area is divided into 52 lots.

In the “Owners’ Dedication” signed by Mr. and Mrs. Staggers, as owners, and by the Rocks, as lessees, there is indicated their adoption of the plan of subdivision and the establishment of the building restriction lines, the drainage easements and the dedication of the streets to public use. There is also a recitation that “There are no suits of [or] action, leases, liens or trusts on the property included in this plan of subdivision, except a certain lease and the parties ⁶²¹ in interest thereto have indicated their assent.” The plan for Section One (I) was approved by the Maryland-National Capital Park and Planning Commission (Planning Commission) and the Prince George’s County Planning Board (Planning Board) on May 23,1962 and was duly recorded thereafter. On June 14, 1962, Mr. O’Mara certified a second plat for Section Two (II) of Briarwood containing 14.2915 acres divided into 39 lots. An identical “Owners’ Dedication” was signed by Mr. and Mrs. Staggers and the Rocks on June 12, 1962.

The plat for Section Two (II) was approved by the Planning Commission and the Planning Board on June 20, 1962 and was duly recorded thereafter. The total number of lots in Sections One (I), and Two (II) was 91. A Modification Agreement, dated July 11, 1962, and duly recorded, was entered into between Staggers and the Rocks whereby the 91 lots were severally leased in accordance with the terms of the original lease. On August 4, 1962, the Rocks as “Lessors” entered into an agreement with J. William Brosius and Louis J. Brosius (Brosius), as “Lessees” in regard to the entire 94.5036 acres of Briarwood.

The agreement which was signed, sealed and acknowledged by all of the parties recited that the Rocks planned to subdivide the 94.5036 acres into approximately 255 lots and Brosius desired to lease each and all of the lots which the Rocks were willing to lease to Brosius upon the terms set forth. The agreement further recited that Brosius had deposited with the Rocks on March 23, 1962 the sum of $5000.00 “as an earnest money deposit to be held by the Lessors in pursuance of this agreement.” Paragraphs 2 and 3 of the agreement provided as follows: “2. The Lessors agree to prepare and cause to be recorded among the Land Records for Prince George’s County, Maryland, a Plat, or Plats, of subdivision subdividing the said 94.5036 acre parcel of land into approximately 255 lots as herein above mentioned, 34.-6860 acres thereof having been heretofore subdivided into 91 lots in accordance with plats of subdivision duly recorded among Land Records in Plat Book WWW-44, Plats No. 21 and 47. ⁶²² “3. Upon the recording of said plats the Lessors and the Lessees shall as and when each separate plat is recorded make and enter into a sub-lease agreement in the exact form of the sub-lease agreement made on even date herewith applicable to the 91 lots included in the plats heretofore recorded among the Land Records as aforesaid, the terms and conditions of each said sub-lease to be exactly those contained in the said agreement executed on even date herewith except for the property description.” (Emphasis supplied).

The agreement further provided that the Rocks would pay to Brosius one-half of the contribution required by the Washington Suburban Sanitary Commission in connection with the engineering for and installation of, the outfall sanitary sewer to service the lots into which the 94.5036 acres were to be subdivided, with certain exclusions; the Rocks agreed to cooperate with Brosius to effect a consolidation of any sub-lease created during the construction of residential dwelling houses and ground rent leases so that the Staggers would own a proportionate portion of the leases without any agreement to subject the interest therein to the lien of any mortgage and the Rocks and Brosius would own a proportion thereof; it was agreed that any sub-leases created by Brosius would contain a provision for redemption based on a capitalization of all rents of 6°fo; it was also agreed that the earnest money of $5000.00 would be applied ratably to the first rent, or rents, due for each of the lots into which the 94.5036 acres would be divided ; Brosius would pay the cost of recording the sub-leases; and, it was agreed that the unrecorded prior agreement of March 23,1962 was cancelled. The earnest money of $5000.00 referred to in the agreement as having been deposited was the promissory note of April 10, 1962 payable to Prince-Mar which was payable 60 days from its date. Actually it was not paid until October 16, 1962 by a check to the Rocks at which time the Rocks returned the note marked “Paid in full, Thos. G. Martin, Secretary.” By a Supplemental Agreement, dated August 6, 1962, (signed, sealed and acknowledged by the Rocks), the Rocks agreed with Brosius to subordinate their leasehold interest in the 94.5036 ⁶²³ acres to any first mortgage or first deed of trust “securing an interim bona fide development loan on each group of lots, the proceeds of which loan * * * are to be used for the improvement of the lots * * The subordination agreement further provided that the term of any such loan should not exceed 18 months and should be made by a responsible lending institution.

There would be no personal liability on the loans by the Rocks, who would execute instruments required by the closing attorneys to subordinate their interest, and a default by Brosius in the repayment of any such loan “shall constitute a default by the Lessees under each and all of the subleases by reason of which the Lessors shall have the right to reenter the premises and terminate each and all of said subleases.” It was also provided that the subordination agreement bound the Rocks, “their heirs, administrators, and assigns and shall be deemed to run with and bind their interest in the 94.5036 acre parcel of land and the lots into which the same are subdivided in accordance with said agreement to lease.” As already indicated the subordination agreement was executed only by the Rocks. On August 23, 1962, the Rocks, as lessors and Brosius, as lessees executed a Sub-lease and Deed of Assignment, recorded on October 3, 1962, which subleased the 91 lots in Sections One (I) and Two (II) already recorded for the “rest and residue, save one day, of the term of years yet to come and unexpired in the 35 year term under the Original Lease.” Brosius was to pay a subrent of $132.00 for each lot annually accounting from April 1, 1963 and thereafter the subrents were payable semiannually at $66.00 for each lot. Brosius had the right to redeem each lot for $2200.00 plus accrued rent to the date of redemption. The sublease provided that if one or more of the rents were in arrears the Rocks could make distress; if the arrears continued for 60 days, the Rocks could reenter and hold the premises until the arrearages were paid; and, if the arrears continued for 6 months the Rocks could reenter and hold the premises as if the sub-lease had never been made.

Brosius agreed to pay “the aforesaid rents, taxes and assessments when legally demandable.” There was also a provision after the expiration of the original term for payment of rent with upward adjustment based ⁶²⁴ on the “Consumer’s Price Index for all Items for Moderate Income Families in Targe Cities”, at the time of renewal in proportion to the Index in December 1961, and a similar provision for upward adjustment after the original term for the $2200.00 redemption price. The Rocks covenanted to pay the Staggers $68.60 annually in equal monthly installments for each lot and represented that the lots could be redeemed under the original lease for $1486.54 plus accrued rent, subject to the same type of adjustment based on the Consumer’s Index. The Rocks also agreed that during the term, they would subordinate their interest in the leased property to any interim construction loan obtained from a responsible lending institution for the purpose of erecting improvements on the property if the construction loan did not exceed 75 % of the appraised value of the completed improvements as appraised by the lending institutions, and if the term of the loan did not exceed 18 months. A question arose as to whether the payment of rent was to be made on all 255 lots on all of the 94.5036 acres or only upon those lots in the subleases as and when executed.

In the spring of 1963, by an exchange of correspondence, the Rocks and Brosius construed the agreement to lease as requiring the payment of rent for all 255 lots, accounting from October 1, 1962, and the rent was paid by Brosius on April 20, 1963 or 20 days after the due date of April 1, 1963. The engineer’s certificate on the plat for Section Three (III) was dated September 25, 1962. On this plat the Owners’ Dedication, signed by the Staggers and the Rocks was dated September 26, 1962. The plat was approved by the Planning Commission and the Planning Board on October 17, 1962.

It was recorded prior to the filing of suit. Section Three (III) showed a subdivision of 3 lots and a triangular outlet marked “A”. The relations between the Rocks and Brosius remained pleasant until at least October 3, 1963 when the attorney for the Rocks wrote Brosius as follows: “I believe we have worked out our problems with Mr. Staggers and as a step toward documenting the leasing of the additional lots to be subdivided I would suggest that we proceed with preparation of the plat of the property, which should be recorded prior to ⁶²⁵ my making a lease agreement between Mr. and Mrs. Rocks and you and making the necessary modification to the Staggers lease agreement so that the lots will be leased on an individual basis. “You will recall that we had an agreement with Mr. Staggers to the effect that we would either screen plant a lot for a distance of 50 feet opposite the new entrance way to his property or in the alternative give him one of the lots in the tier of lots lying adjacent to Contee Road so that he could control the appearance of the entrance way across from his property. “If you are now ready to proceed with the development of the lots lying on the south side of Contee Road, I think we should proceed with the recording of the subdivision plat. If the above meets with your approval, I will appreciate your instructing Greenhorne & O’Mara to proceed accordingly so that the various documents can be prepared and executed.” '1'he trial court found that “at some point after October 3, 1963 and by November 1, 1963, or within a matter of 28 days, the Rocks had a complete change of mind, and it is fair to conclude that this must have had some connection with a change in the general construction picture, wherein the land must have been recognized by the Rocks as being far more valuable than the $2200.00 per lot figure placed upon the lots by the terms of the sublease.” In any event, on November 1, 1963, the rent for October 1, 1963 in the amount of $16,830.00 not having been paid, counsel for the Rocks wrote Brosius notifying them of their election to reenter the premises and of the termination of the lease agreement for failure to pay the rent past due.

Also on November 1 Brosius had forwarded a check for $8000.00 currently dated and one dated November 8 for $8830.00. The two letters crossed in the mail. Mr. Rocks returned the checks in a letter dated November 4. Brosius on November 8 mailed a certified check for $16,830.00 for the October 1, 1963 rent, but this was returned by Mr. Rocks in a letter of November 15 in which Mr. Rocks contended that he “was reliably informed that there are existing defaults in the terms and conditions of ⁶²⁶ the several deeds of trust.” This certified check and a statement dated November 20, 1963 from the Loyola Federal Savings and Loan Association (Loyola Federal)* the lending institution making the construction loans, that the Brosius’ accounts “are current” were forwarded to counsel for the Rocks.

Counsel for the Rocks returned the certified check in his letter of November 25 and on December 4 counsel for Brosius wrote counsel for the Rocks indicating that the actions of the Rocks were a breach of the various agreements and subleases and that court action would have to be initiated. The letter continued as follows : “The plats for Sections IV and V of Briarwood have been in your hands for a number of weeks. It is apparently your intention not to execute these and thereby prevent recordation. We hereby formally demand that these plats, now in your possession, prepared by Greenhorne and O’Mara for Sections IV and V of Briarwood be executed by the original Lessors (Staggers), by you as Lessors to the Messrs.

Brosius and forwarded to them at their address in Frederick, Maryland for their execution preliminary to recordation. We further demand that you instruct Greenhorne and O’Mara to prepare plat plans in accordance with the agreement of August 4, 1962 for the balance of the 94.5036 acres in the Briarwood tract and that these additional plat plans be signed by both the Staggers and you and sent to the Brosius brothers for their execution. Finally, we demand that in accordance with paragraphs 2 and 3 of the agreement of August 4, 1962, you enter, as Lessors, into the enclosed sublease and deed of assignment which has been executed by the Messrs. Brosius, as Lessees. “If we do not hear from you affirmatively by Monday, December 9, 1963, with regard 1 to these demands, it will be necessary for us to follow the only remaining course of action open to us—that is initiating legal action.” Counsel for the Rocks then contended that there was a default for the failure to pay the 1964 taxes “when legally de ⁶²⁷ maridable”.

The exhibits show that these taxes in the amount of $1667.63 were paid on December 31, 1963. The present suit for specific performance, a declaratory judgment, damages for delay in performance, and for an interlocutory injunction, was filed on January 14, 1964. Also on that day, upon a petition of Brosius, the Circuit Court permitted the payment by Brosius of $6006.00 to the clerk for the rent due on lots occupied by Brosius. After the Rocks filed their answer, the Circuit Court after hearing, issued an interlocutory injunction restraining the Rocks and Prince-Mar from the following: “1.

Obstructing, interrupting or interfering in any way with the leasehold title of Plaintiffs or any one claiming by through or under Plaintiffs in and to the parcel of land described and referred to in a sublease and deed of assignment relating to 34.6860 acres of land in Prince George’s County, Maryland dated August 23, 1962 and recorded among the land records of Prince George’s County in Liber 2737 Folio 405, and upon any sale of an improved lot from said parcel of land Defendants shall promptly comply with the applicable terms of (a) an agreement to lease dated August 4, 1962 and recorded among the land records of Prince George’s County in Liber 2737 Folio 399 and (b) the sub-lease and deed of assignment of August 23, 1962 first above referred to. “2. Making or executing, of record or otherwise, any encumbrance, or taking any other action, of record or otherwise, to affect conveyance in any manner of the title to any portion or all of the parcel of land containing the balance of the entire tract of 94.5036 acres which is the subject matter of and is described and referred to in the aforesaid August 4, 1962 agreement to lease which is recorded as aforesaid in Liber 2737 Folio 399 of the land records of Prince George’s County except subject to and in complete acknowledgement of all of the rights of Plaintiff as set forth in said Agreement of August 4, 1962; * * ⁶²⁸ The injunction was effective upon posting a $1000 bond by Brosius and was subject to a hearing on an application for dissolution of the injunction upon 10 days notice to the Rocks and Prince-Mar. The facts in regard to the alleged violation of this injunction will be given later when that issue is considered. At the hearing on the merits held January 28, 1965 the only testimony given was that of J. William Brosius, which is, of course, uncontradicted.

The documents mentioned above, and others were offered in evidence. The Rocks offered certified copies of various deeds of trust in evidence. In addition to the above facts, Mr. Brosius testified that Mr. Rocks told him on two occasions: “I am a wealthy man and I can carry this a whole lot further than you can. You can’t afford to fight me, and I will carry it as far as necessary, and if we have to appeal it, we will appeal it. * * * [H]e said that he was going to carry this to the enth degree, he was a wealthy man, and that he would break me if necessary.” At the argument, after the Chancellor indicated that the three excuses advanced in defense of the Rocks were without merit, counsel for the Rocks argued for the first time that the agreement to lease of August 4, 1962 (prepared by counsel for the Rocks) was unenforceable by Brosius because of the indefiniteness of its terms.

The Chancellor indicated that this defense was neither mentioned in the pleadings nor in the opening statement of counsel. The bill of complaint was dismissed as to Prince-Mar. In a comprehensive and well considered opinion, Judge Bowie concluded that there was no merit to any of the defenses advanced on behalf of the Rocks and that Brosius was entitled to relief. The Chancellor signed a decree on February 11, 1965 which provided that: 1.

The Rocks perform without further delay their obligations under the Agreement to Lease dated August 4, 1962 by executing and recording the development plans already prepared by the engineers for Sections IV and V of Briarwood and in the possession of the Rocks. 2. The Rocks execute and file for record the development plan for Section VI of Briarwood to be in substance in the ⁶²⁹ form presented to the court at the contempt hearing on November 23,1964. 3. As the plats for Sections IV, V and VI were recorded, the Rocks will execute appropriate subleases exactly like the sublease of Sections I and II dated August 23, 1962, except as to the description, so that all of the 94.5036 acres of Briarwood would be ultimately fully platted and recorded. 4. The matter of damages for (a) the contempt previously adjudged, and (b) for the wrongful eviction from all of Briar-wood be deferred for later determination. 5.

The Rocks execute any necessary other instruments and documents required to effectuate the Agreement to Lease, including subordination agreements and documents required by the Sanitary Commission or the Department of Public Works. 6. The Rocks comply with the Agreement to Lease and the sublease of August 23, 1964 by executing deeds when required at the time of settlement or when redemption of lots are made. 7. There be an accounting as to the money paid into court. 8. The provisions of the Agreement to Lease are clear, definite and enforceable. 9.

The bond for the Interlocutory Injunction is discharged. 10. The Rocks will pay the costs. The Rocks, on February 23, 1965, filed an order entering an appeal to this Court “from the decree entered in the above entitled action on February 11, 1965.” The Rocks stated in their brief: “No appeal is taken from the decree as it applies to the 91 lots of land sub-let by the Appellants dated August 23,1962.” The questions presented for our decision are: I. Plave the Rocks by abandoning their appeal to Section One (I) and Two (II) of Briarwood, foreclosed this appeal as to the rest of Briarwood ? 11. Was the Agreement to Lease of August 4, 1962 specifically enforceable ?

III

Were the attempted reentry and termination of the lease by the Rocks justified (a) by the failure of Brosius to pay rent in time? (b) by the alleged default in accounts at Loyola Federal? or (c) by the failure to pay real estate taxes prior to December 31, 1963? ⁶³⁰ IV. Did the Chancellor err in denying the Rocks discovery of documents and other data in regard to Brosius’ financial condition ? V. Was the ruling of the Chancellor on contempt appeal-able, and if so, did the Chancellor err in holding the Rocks in contempt?

VI

Is Brosius entitled to damages in addition to specific performance and declaratory relief ? I. In the appellants’ brief, the Rocks stated: “No appeal is taken from the decree as it applies to the 91 lots of land sub-let by the Appellants by agreement dated August 23, 1962.” The appellees earnestly contend that this is the abandonment of the appeal so far as Sections One (I) and Two (II) are concerned and, inasmuch as the obligation of the Rocks by the agreement of August 4, 1962 is an entire one for a plat or plats subdividing the entire 94.5036 acres into approximately 255 lots, of which 34.6860 acres were already subdivided by the plats for Sections One (I) and Two (II), there is a recognition of, and acquiescence in, the validity of the decree resulting in a waiver of the right to appeal from that decree. The right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal. See Bowers v. Soper, 148 Md. 695 , 130 Atl. 330 (1925) involving an appellant who sought the distribution of funds in accordance with an audit and attempted to appeal from the order finally ratifying the auditor’s report and account.

See also State, use of Shipley v. Walker, 230 Md. 133 , 186 A. 2d 472 (1962) and Turner v. Washington Suburban, Sanitary Commission, 221 Md. 494 , 158 A. 2d 125 (1960) in which we held that if a party accepted the amount of a remittitur, he could not on appeal challenge the order granting the remittitur. It is also well settled that an appeal will not lie from a consent decree. Mercantile Trust Co. v. Schloss, 165 Md. 18 , 166 Atl. 599 (1933). It can be argued, however, that upon consideration of the whole contractual arrangement between the parties, and the signing and recorda ⁶³¹ tion of the plats for Sections One (I) and Two (II) there was a severable execution by the parties of an otherwise unenforceable contract and an executed part of that contract cannot be challenged by the parties even though the remaining portion of the contract may be successfully challenged by the Rocks.

As we are of the opinion that the contract as a whole is specifically enforceable, we prefer to rest our decision on the merits and, therefore, do not find it necessary to decide this interesting point raised by Brosius in regard to the waiver or abandonment of the entire appeal so far as the enforceability of the agreement of August 4, 1962 is concerned.

II

The Rocks challenge the specific enforceability of the agreement of August 4, 1962 on two grounds: (a) that the property to be conveyed was “non-existent” at the time of the execution of the agreement, remained “non-existent” at the time of filing suit and the holders of the fee simple title were not parties to the suit, and (b) the agreement is too vague for specific enforcement in that neither the agreement nor extrinsic evidence indicates the manner in which the subdivision is to be carried out or the time within which the agreement is to be performed. (a) The Rocks raise the point that the agreement of August 4, 1962 may not be specifically enforced because the property was “non-existent” for the first time on this appeal. The point was not referred to in the pleadings or in the argument in the trial court. Assuming, but not deciding—in view of Maryland Rule 885—that the point is properly before us, we are of the opinion that it is without merit.

It seems clear fi> us that the Rocks obtained the leasehold' estate in Briarwood by the Lease Agreement of February 5, 1962. This instrument was effective as a lease of the 94.5036 acres for a definite term of 35 years, renewable, as provided in the lease, forever. The rent received was $17,010.65 payable in monthly installments accounting from March 1, 1962. There were provisions for apportionment of the ground rent as well as the usual provisions for distress, reentry and forfeiture if the rent received was not paid.

The Staggers also agreed to warrant the property and execute such further ⁶³² assurances of the property as might be requisite. The instrument was duly recorded. This type of leasehold estate is well recognized in Maryland and has long been used in this State and in the Province of Maryland as a result of the provision in the Charter granted by King Charles I to Cecelius Calvert, Lord Baltimore, in creating the Province of Maryland, that the Statute of Quia Rmptores 2 should not apply in the Province. For an interesting discussion by Judge Chesnut of the Maryland ground rent system, its creation and its various legal incidents, with a review of the Maryland cases, see Jones v. Magruder, 42 F. Supp. 193, 195-197 (1941).

See also 38 C.J.S. Ground Rents §2, c(2), pages 1090-1091. Both the Staggers and the Rocks acknowledged that the Rocks were the lessees of Briarwood. In all of the recorded subdivision plats, the Staggers signed as “owners” and the Rocks as “lessees.” It is apparent that the Rocks had an estate in the land which required their “assent to the plan of subdivision” as the plats recite on their face. There seems to be little question that the “property”, i.e., the unencumbered leasehold estate of the Rocks, exists.

The Rocks had the right to sublease the property and to agree to do this. In the agreement of August 4, 1962, the Rocks did agree to sublease to Brosius the entire 94.5036 acre parcel and to prepare and record plats of subdivision dividing the parcel into approximately 255 lots, reciting that plats of subdivision for 34.6860 into 91 lots had already been recorded and giving their recordation references. The sublease of August 23, 1962 was made pursuant to the agreement of August 4, 1962 and set out the amount of the subrents on the 91 lots already platted. Paragraph 3 of the agreement of August 4, 1962 provided that subleases for plats to be made and recorded for the remaining lots would have the same terms and conditions as contained in that sublease except for the property description.

The agreement of August 4 and the sublease of August 23 are to be construed together and made clear and definite the terms of the contractual arrangement between the parties. The correspondence between counsel for the Rocks and Bro ⁶³³ sius between July 20 and October 3, 1963 indicates that the Rocks understood that Brosius had legal rights in all of the lots. For example, in the letter of July 23, 1963 counsel for the Rocks stated, in part: “We have no question with respect to our legal rights in the matter as to the property lying south of Contee Road 3 and will, when and if necessary assert our and your rights positively but we believe to do so before we have concluded our negotiations [with the Staggers] might prove hurtful.” (Emphasis supplied). Even more importantly, Brosius paid the Rocks and the Rocks had demanded, rent on all 255 lots not only with respect to the original deposit of $5000.00 but also for the later rent payments made on April 20, 1963.

Then too, on October 3, 1963, counsel for the Rocks wrote Brosius that the problems with the Staggers had been worked out and if Brosius was ready to proceed with the development of the lots on the south side of Contee Road “I think we should proceed with the recording of the subdivision plat.” He then requested Brosius to instruct Greenhorne and O’Mara to proceed accordingly “so that the various documents can be prepared and executed.” There were property interests existing in both the Rocks and Brosius and this was clearly acknowledged by the Rocks. The Rocks rely on a possible alternative holding in Ward v. Newbold, 115 Md. 689, 694-695 , 81 Atl. 793, 795 (1911). The Newbold case involved a contract of sale between the fee simple owner of land in Baltimore City and a purchaser in which payment was to be made in part by two ground rents to be created but in regard to which no term was stated. The contract also required the building of 2 two-story dwelling houses containing 6 rooms each, without stating the depth, size or character of the houses to be built.

This Court held that the contract could not be specifically enforced because its terms were not sufficiently certain in that no term of the ground rents was given and there were no provisions in regard to the depth, ⁶³⁴ size and character of the dwellings to be erected. Judge Pearce, for the Court, did indicate as an additional reason for his holding that the ground rents to be created did not exist when the contract of sale was made and that specific performance of an agreement to convey non-existent property would not be granted, citing two cases—one involving a patent which the defendant did not own, the other, stock in a corporation not organized at the time suit was filed—as authority for that statement. Newbold is readily distinguishable from the case at bar in which the term of the ground rents and subrents is clearly given and there are no provisions involved in regard to the erection of specific houses. The case at bar, in regard to certainty of terms of the ground rent or subrent, is analogous to the decision of the Court in Serio v. Von Nordeck, 189 Md. 388 , 56 A. 2d 41 (1947) which involved an agreement to sell a tavern property in Baltimore City to the tenant “for $20,500 subject to a ground rent of $90.00 per year for 99 years, renewable forever.” The seller raised the same defense of “non existent property” and relied on the Newbold case.

The Court held that the bill of complaint of the purchasers stated a good cause of action for specific performance. Judge Markell, for the Court, stated at page 393 of 189 Md., pages 42-43 of 56 A. 2d: “Defendants also contend that the subject matter of the contract, viz., a leasehold estate in the property, is nonexistent and a court of equity ‘will not decree specific performance of an agreement to convey property which has no existence.’ Ward v. Newbold, 115 Md. 689, 694 , 81 A. 793, 795 , Ann. Cas. 1913A, 919. In substance and in form, this contention is- without merit. In substance, speaking colloquially, it is no more difficult to enforce a contract to ‘sell,’ subject to a ground rent, than a contract to sell, subject to a purchase money mortgage.

In form, speaking technically, it is no more difficult to enforce a contract to lease than a contract to sell. Schluderberg v. Dietz, supra; Read Drug & Chemical Co. v. Nations, supra. Whether the consideration for the lease consists of rent only or ⁶³⁵ of rent plus a lump sum ‘purchase price’ makes no difference. Ward v. Newbold, supra, does not support defendants’ contention.

In that case the vendors agreed to sell land and execute a deed to the vendee, to be held in escrow; the vendee agreed to pay the purchase price by (a) building houses (of unspecified size and plan) on the land, (b) ‘creating ground rents’ (i.e., leases for an unspecified term from the vendee to unascertained lessees) on the properties and (c) conveying the ground rents to the vendors. The contract was held not to be specifically enforceable because the term of the leases was unspecified; an additional reason mentioned was the fact that in the circumstances mentioned the contract involved the future creation of rents. Whatever the exact scope of the decision, it is not now in point.” (b) Rocks also contends that the agreement of August 4, 1962 is too vague to be specifically enforced because it does not definitely set forth the manner in which the subdivision is to be carried out or the time of performance. We do not agree.

On this aspect of the case, the maxim “Id certum est quod certum reddi potesf’, or, as translated into English, “That is certain which may be rendered certain” should clearly apply. It is true that the exact time of the subsequent steps to be taken as agreed upon between Rocks and Brosius so far as the recordation of future plats and the execution of new subleases are concerned, is not specified in the agreement of August 4, 1962. Under these circumstances the legal implication is that these steps would be taken within a reasonable time. Lawson v. Mullinix, 104 Md. 156 , 64 Atl. 938 (1906).

The same rule applies when the time of payment is not stated in a mortgage. Farrell v. Bean, 10 Md. 217 (1856). Judge Boyd, for the Court in Mullinix, supra, stated : “ ‘Very recently, in Farrell v. Bean, 10 Md. 223 , this Court has said: “When no particular time of payment is limited in a mortgage, it is to be paid in a ⁶³⁶ reasonable time. And if the payment is not so made, the mortgagee is entitled to a foreclosure.” ’ In Williamson v. Neeves, 94 Wis. 656 , it was held that the fact that no time was fixed for the conveyance of land was immaterial, because the legal implication would be that the conveyance was to be made within a reasonable time.

Such time as was really necessary for the preparation of the deed, examination of the title, etc., would be allowed, and a Court of equity would see that such reasonable time was allowed.” (P. 169 of 104 Md.; p. 943 of 64 Atl.). The Rocks are in a difficult position to urge upon us that the agreements which their counsel drew are not enforceable because of vagueness when they were sufficiently definite to enable the parties to prepare, file and record the plats for Sections One (I), Two (II) and Three (III), prepare and execute the plats for Sections Four (IV) and Five (V) and prepare a tentative plat for Section Six (VI). The Rocks, as we have indicated, have