Smith v. Heldman

Schmucker, J., delivered the opinion of the Court. On May 28th, 1851, Charles Shipley and wife leased a lot of ground at the northeast corner of Baltimore and Calhoun streets in Baltimore City, to Elias Rosenswig, for the term of ninety-nine years, renewal forever, at an annual rent of $230.83. The lease was under seal and contained the provisions usually found in long leases in Baltimore City, including one authorizing the lessor and his assigns to distrain for rent in arrear. The following plat shows the location and dimensions of the demised lot and also the several portions of it mentioned in this opinion. ^{347 348} On December 16th, 1853, Rosenswig assigned the leasehold estate in the entire lot to John P. P. Jones, who, in July, 1868, sub-leased the part of it marked B on the plat to Candace B. Hudnall for the residue, save one year, of the original term, at an annual rent of $230.83 which the sub-lease provided might be paid either to Jones and his assigns or to the owner of the original rent on the entire lot.

In May, 1882, Jones conveyed by a deed, in fee-simple form, his interest in part A of the lot to Sarah R. Helsby, who subleased it a few days thereafter to Timothy A. Carroll for the residue, save one year, of the original term, at an annual rent of one cent if demanded. Jones subsequently sub-leased to other persons the remaining portions of the lot which are designated, D 2, D 1, and C, on the plat. He died in 1897 without having parted with his intermediate leasehold interest in the lot, leaving a will by which he gave his entire estate to his wife, Mary A. Jones, and Isaac H. Dixon in trust for his wife, Mary A., for life with remainder to other persons. The widow qualfied as executrix of the will, but did not include this leasehold in the inventory or make any disposition of it as she was not aware of its existence.

There is no evidence that the owners of the reversion of the entire lot under the original lease and of the'original rent of $230.83 reserved by that lease were parties to or had knowledge of the various transactions in and conveyances of the leasehold estate in the several portions of the lot by Jones and those claiming under him. The appellee, Catherine Heldman, became the owner of the reversion in fee in the entire lot with the original rent of $230.83 in 1883, after the Metropolitan Savings Bank had acquired title to the sub-leasehold estate in part B of the lot. The appellee having thus become the owner of the original rent sent to the demised premises to collect it and her collector was there told to go to the savings bank for it which he did and that institution regularly thereafter paid the whole rent until about the year 1899, when it seems to have assigned its interest in the lot to another person. So long as the bank paid the ³⁴⁹ rent the appellee had no occasion to make and did not make any demand for it upon the owners or occupants of the other portions of the demised lot.

After the bank ceased paying the rent one or two instalments of it were paid by Carroll the owner of the sub-leasehold in part A of the lot to protect his tenants, of whom the rent had been demanded on the demised premises, from distraint. Carroll having refused to pay any further rent the appellee distrained upon the chattels found in the building on his part of the lot for the instalment of rent due January ist, 1900, and from that distraint the present proceedings originated. The appellant replevied the distrained chattels and the appellee, who was made defendant to the replevin suit, avowed that they had been distrained for rent in arrear. To the avowry the appellant filed several pleas, to one of which the appellee demurred and her demurrer was sustained.

Issue was joined upon the other pleas and upon a trial of the case before the Court without a jury the verdict and judgment were in favor of the appellee for a return to her of the property dis-trained upon and costs. The bailiff who made the distraint was made a co-defendant to the replevin but he did not appear in the case and no further notice was taken of him. The second and third pleas raised the important issue in the case, which was whether part A, upon which the chattels were located when taken in distress, had been released from liability for the original rent. It is admitted that no formal release of the rent had ever been made but it was contended by the appellant that the conduct of the appellee in collecting the entire rent for so many years from the owner of part B showed an acquiescence by her in the payment of the whole rent by the owner of that parcel and estopped her from claiming any rent from the other portions of the demised lot.

This contention is not a new one. It has frequently been made in this Court by the owner of a portion of a leasehold lot in litigation with the landlord of the entire lot, but it has in such cases been uniformly rejected. In Ehrman v. Mayer, 57 Md. 612 , no part of the original ³⁵⁰ rent reserved on the entire lot had been demanded or collected within the memory of any one living from the portion of the lot then in controversy whose owners thought that it was theirs in fee, but the Court held that, it having been conceded that the relation of landlord and tenant once existed under a lease like the one in controversy in the present case, no presumption of a release of the rent arose from the absence of a demand therefor upon the owners of that portion of the lot. In Myers v. Silljacks, 58 Md. 327 , upon a state of facts quite similar to those of the title now before us, the Court held that it was not competent for the lessee or his assignees to charge the entire rent upon one part of the demised lot to the complete release or exoneration of the other part without the assent of the owner of the reversion.

The Court say in the opinion in that case; “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 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 when 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.” See to same effect Wahl v. Barroll, 8 Gill, 288; Campbell v. Shipley, 41 Md. 81 ; Worthington v. Lee, 61 Md. 530 . The cases of Barnitz v. Reddington, 80 Md. 622 , and Connaughton v. Bernard, 84 Md. 577 , which were relied on by the appellant did not present the same issue as the one now before us. There was in those cases no claim that the landlord had entirely released a portion of a demised lot from all liability for any part of the rent reserved on the whole lot by collecting that rent for a series of years from the owner of a ³⁵¹ building erected on another part of the lot.

It was simply-held in those cases that, where the landlord had in one instance for more than fifty and in the other more than twenty years collected only a fixed portion of the entire rent from each one of the several parts into which the lessee had subdivided a demised lot, that course of conduct on his part coupled with other circumstances