Schultz v. Kaplan

Collins, J., delivered the opinion of the Court. This is an appeal by Isidor Schultz from a declaratory judgment entered in the Superior Court of Baltimore City in favor of Nathan Kaplan et al. On the 31st day of October, 1933, Lena Kaplan and David Kaplan, her husband, as lessors, and Ruth Schultz, as lessee, entered into a lease for a property at 779 Washington Boulevard for a term of five years beginning on December 20, 1933 and ending on December 19, 1938, at the rental of $50 per month. This lease was subject to the unqualified right of the lessee to terminate the lease at the end of any year upon sixty days’ notice prior to the end of such lease. David Kaplan having died on April 30, 1938, Lena Kaplan, his wife, who was his co-tenant by the entireties became the owner of the property.

On October 21, 1938, Lean Kaplan, widow, executed a lease to Isidor Schultz, the husband of Ruth Schultz, for the same property, where the said Isidore Schultz was engaged in the meat and grocery business. This lease began on the first day of January, 1939, and ended on the 31st day of December, 1943, at a rental of $60 per month during the years 1939, 1940, and 1941, and $65 per month for the years 1942 and 1943. This lease also provided that it was “subject, however, to the unqualified right on the part of said Tenant to terminate this lease at the end of any year of the term above mentioned, accounting from the said 31st day of December, 1939, upon a notice in writing addressed to the said Landlord at her last known address at least sixty days prior to the end of any such year.” (This provision was also contained in the lease of October 31, 1933, supra.) This lease also contained the following provision: “And it is further agreed that this lease shall continue from term to term at the rental of $65.00 per month unless previously terminated as hereinbefore provided.” (This pro ⁴⁰⁵ vision was not included in the lease of October 31, 1933, supra.) Neither of these leases was acknowledged or recorded. Lena Kaplan died intestate on or about June 15, 1940, survived by the appellees in the instant case as her sole heirs at law to whom the property leased descended from the said Lena Kaplan in fee simple.

The appellant, Isidor Schultz, the tenant named in the second lease, held over, with the consent of the appellees, after the termination of the first five-year period under the second lease, that is, after December 31, 1943. In May, 1944, the appellees received an offer from some third party to purchase said premises. The appellant, having been offered the property, refused it and asserted that he had a lease of said premises forever, terminable at the end of any year by the tenant only. In August, 1944, the appellees here filed a bill in equity in Circut Court No. 2 of Baltimore City asking that the aforesaid lease be set aside on the ground of fraud.

In the bill of complaint filed the appellees, here, recited the provisions in the lease of October 21, 1938, as to its termination hereinbefore quoted, and made the statement in that bill of complaint “That there is no provision in said lease as to its termination on the part of the landlord or her heirs or assigns. But that the same is operative at the option of the tenant indefinitely.” A decree was entered in that equity case dismissing the bill of complaint because of laches “without prejudice to the Complainants to pursue any other remedies that they might have if any, the Complainants to pay the costs of these proceedings.” On January 26, 1946, the appellees here by their attorney sent a registered letter to Isidor Schultz, the appellant here, notifying him to vacate the premises described in the lease on or before February 28, 1946. On March 7, 1946, the appellees here filed in the Superior Court of Baltimore City a “Declaration and Prayer for Declaratory Judgment” in which they alleged the execution of the aforesaid leases and the terms there ⁴⁰⁶ of, the filing of the bill of complaint in August, 1944, the dismissal of that bill of complaint and the decree thereon, the notice by registered mail to the appellant to quit said premises on February 28, 1946, the failure of the appellant to quit the premises, the desire of the appellees to sell the property and liquidate their assets, the controversy between the parties and the desire of the appellees for a determination of their status and other legal relations under the Uniform Declaratory Judgments Act, Acts of 1945, Chapter 724. The appellees asked: the recovery of the premises leased and $1,000 for their damages; if the plaintiffs are not entitled to the possession of said land that the court give judgment declaring the second lease void and that the existing tenancy is one from year to year terminable at the end of each year of said tenancy by both landlord and tenant; if said second lease is not void that the court give a judgment declaring that by construction the second lease is terminable by both landlord and tenant at the end of each five-year renewal thereof; if said second lease is not terminable at any time that the court give judgement otherwise declaring the nature of the estates, rights, status and other legal relations of the parties arising under said second lease; and for other and further relief under the said “Uniform Declaratory Judgments Act” as plaintiff’s case may require.

A demurrer was filed to the declaration on the special grounds that the declaration disclosed on its face a cause of action cognizable only in equity and that plaintiffs had heretofore submitted to the jurisdiction of the equity court which had full power and authority to dispose of all matters essential to the determination of plaintiffs’ rights. Judge Dickerson overruled this demurrer. After pleas were filed, the case was heard by Judge E. Paul Mason who found that under the terms of the lease the notice of termination could be given by the landlord as well as the tenant. He entered a judgment that the appellant was in lawful possession of the premises under an extension of the second lease dated October 21, 1988, ⁴⁰⁷ which lease unless previously terminated as therein provided may by at least six months’ written notice to the defendant, “be terminated by the landlords or their successor in title as of December 31, 1948, or, in their election, as of the last day of any five-year period accounting from said date”, and that costs be paid by the plaintiffs.

From that judgment the appellant appeals here. Appellant contends that Chapter 724 of the Acts of 1945, known as the Uniform Declaratory Judgments Act is unconstitutional. The Uniform Declaratory Judgments Act was first adopted in this state by Chapter 294 of the Acts of 1939, codified as Article 31A in the 1939 Code. This Court after the adoption of that Act held that where there exists an immediate cause of action between the parties for which one of the common remedies of law or equity is adequate and available, a proceeding for a declaratory judgment is not appropriate within the contemplation of that Act.

Caroline Street Permanent Building Association No. 1 v. Sohn, 178 Md. 434 , 13 A. 2d 616 ; Morgan v. Dietrich, 179 Md. 199 , 16 A. 2d 916 ; Brown v. Trustees of M. E. Church, 181 Md. 80, 85 , 28 A. 2d 582 . The purpose and intent of Chapter 724 of the Acts of 1945 was to make the Uniform Declaratory Judgments Act concurrent with existing remedies and to declare that the existence of another adequate remedy at law or in equity should not preclude a judgment for declaratory relief in cases in which it was appropriate. Ryan v. Herbert, 186 Md. 453 , 47 A. 2d 360 . Appellant contends that the declaration in the case at bar is really in form and substance a bill in equity and that the procedure in this case is of an equitable nature.

He points out that the Circuit Court of Baltimore City under Article 4, Section 29, of the Constitution of Maryland has exclusive jurisdiction in equity within the limits of Baltimore City, and that the declaration here amounts to a bill in equity which is brought in the Superior Court of Baltimore City which has no jurisdiction in equity, and that Chapter 724 of the Acts of 1945 conferring equity jurisdiction on a law court is unconstitutional. ⁴⁰⁸ Article 75, Section 8 of the Code provides in part: “Any declaration which contains a plain statement of the facts necessary to constitute a ground of action shall be sufficient * * * without reference to mere form.” It is plain that the question raised in the declaration now before us is a legal rather than an equitable question. An effort is made to have the title to real estate adjudicated and to recover possession thereof and this is a legal not an equitable question. Bernei v. Sappington, 102 Md. 185, 191 , 62 A. 365 ; Finglass v. George Franke Sons Company, 172 Md. 135 , 190 A. 752 . The appellees also ask a declaration of the legal relations of the parties arising under said second lease.

It was pointed out in the case of Stinchcomb v. Realty Mortgage Company, 171 Md. 317 , at page 322, 188 A. 790 , 792: “[Courts adhere] to the rule that when title is in dispute, and no irreparable damage from the delay in a suit at law is to be feared, the proper jurisdiction is at law.” See cases there cited. A bill qwia timet in equity would not be appropriate, as suggested by the appellant, because the appellees are not in possession of the property in dispute. Kelly v. Nice, 141 Md. 472 , 119 A. 333 ; Keys v. Forrest, 90 Md. 132, 134 , 45 A. 22 ; Helden v. Hellen, 80 Md. 616, 620, 621 , 31 A. 506 , 45 Am. St. Rep. 371 ; Polk v. Pendleton, 31 Md. 118, 124 .

It was said in 1 Pomeroy, Equity Jurisprudence, Sec. 177 (5th Ed. 1941) : “A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of possession.” The legal effect of the lease here before us is purely a legal question. The appellant refers to a quotation from Borchard on Declaratory Judgments at page 238: “ T cannot doubt that had the Court of Chancery of those days (before 1852) thought it expedient to make mere declaratory judgments they would have claimed and exercised the right to do so.’ Again it is both historically and traditionally a power exercised primarily by courts of equity, ⁴⁰⁹ and even where exercised by law courts it is largely equitable in nature. It is so treated by several courts, which have reserved the fullest liberty in moulding decrees to the necessities of the occasion, regardless of the prayer, although only occasionally do they impose conditions, as in the case of pure equitable decrees.” It must be noted, however, that after the last quotation Professor Borchard further says: “In truth, the source of the power ought not to be considered as of any other than historical importance, for in principle declaratory relief is sui generis and is as much legal as equitable.” It was pointed out in the case of Caroline Street Permanent Building Association No. 1 v. Sohn, supra, 178 Md. 434 , at page 444, 13 A. 2d 616 , decided in 1940 under the Acts of 1939, Chapter 294, that the object of the declaratory judgment act is to supplement and enlarge procedural relief in a field not wholly or adequately occupied by subsisting remedies of law and equity. The amendment of 1945 definitely makes that act concurrent with existing remedies both at law and in equity.

The appellant further contends that the prayers for relief in the declaration now before this court are inconsistent and not of a legal nature. The action here brought is primarily that of ejectment which is a legal remedy. Section 1 of Chapter 724 of the Acts of 1945, supra, provides: “1. (Scope.) Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.

No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” It does not seem inconsistent in an action of ejectment to seek declaratory relief and an adjudication of the rights of the parties under the lease here before the court. The declaratory judgment act is available, where appropriate, whether separately sought or sought in com ⁴¹⁰ bination with the procuring of an executory judgment or decree. Caroline Street Permanent Building Association No. 1 v. Sohn, supra, 178 Md. 434, 444 , 13 A. 2d 616 ; Chase National Bank v. Citizens Gas Company, 7 Cir., 1940, 113 F. 2d 217 .

Apparently a request for the declaration is often combined with a request for possession. The issue for interpretation may involve the date on which a lease terminates. Borchard, pages 630 and 631. It is said by that writer at page 430: “While, it is not necessary to adopt inconsistent pleadings in order to ask for a declaration, alone or in the